What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 12 – 18 September 2016

Sarcastic Comment Regarding Supporting ISIS not Valid Ground for Dismissal

The Fair Work Commission has found that an airport baggage handler was unfairly sacked for making a “sarcastic” Facebook post supporting Islamic State. Mr Singh’s employment was terminated in October 2015 after he made a series of Facebook posts. Mr Singh was informed that he had breached Aerocare’s policies in relation to social media, he had breached his conditions of the employment manual, and his social media comments had jeopardised Aerocare’s relationship with its client and its brand.

The FWC considered 5 Facebook posts made by Mr Singh under a fake profile. These included a post where Mr Singh shared “Pictures from today’s demonstration held in Lakemba against the American/Russian led aggression against the revolution of Syria.” In sharing this post, Mr Singh added the words “We all support ISIS.” On 4 October 2015, Mr Hughes was informed by two Supervisors that they each held concerns regarding Facebook posts made by Mr Singh. Aerocare alerted the Australian Federal Police and an investigation was carried out by the Joint Counter Terrorism Unit. Mr Singh’s employment was terminated on 8 October 2015.

The FWC noted that the creation of these Facebook posts did not constitute a valid reason for dismissal. The FWC stated that this finding “should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” Mr Singh’s Facebook posts did not constitute a valid reason for dismissal.

The FWC considered that if Aerocare had undertaken an “adequate inquiry and proper deliberation of Mr Singh’s response (certainly greater than just 10 minutes), it should have been accepted that Mr Singh had made a grave error of judgment in making the sarcastic ISIS post.” In these circumstances “it would have been appropriate [for Aerocare] to meet with Mr Singh and reiterate the Social Media Policy (SM Policy), and seek an assurance from him that he would, in all forms of social media interaction, whether within profiles or closed or secret groups, comply with the SM Policy. Aerocare would have been at liberty to inform Mr Singh that any subsequent breach of the SM Policy, whether made in a profile of his own name or otherwise, in a closed group or in public would result in the termination of his employment.” The FWC concluded that Mr Singh had been unfairly dismissed. Mr Singh received compensation, reduced by 40% for misconduct.

This is an insightful case for providing guidelines on what the Employer should have done as an alternative to dismissal. It would appear, yet again that the process they followed in conducting the investigation could have bene done better.

NSW Ambulance Officers Report High Levels of Bullying and Sexual Harassment
A recent survey of 500 former and serving ambulance officers has reported that bullying, sexual harassment, cronyism and corruption are now entrenched in the NSW Ambulance service. The survey found 31% of respondents had been subjected to sexual harassment or abuse, and 75% had been bullied at work. Almost one third had made a complaint with the service’s Professional Standards and Conduct Unit but had either received no outcome or felt their complaint had been covered up. A spokesman from NSW Ambulance has questioned the accuracy of the survey.

When Can an Employer Consider Conduct Outside of the Workplace as a Valid Reason for Dismissing an Employee?
In the case of Kedwell v Coal & Allied Mining Services Pty Ltd (T/A Mt Thorley) [2016] FWC 6018, the FWC has considered whether Scott Kedwell was involved in the bullying of an employee of Coal & Allied Mining Services Pty Ltd (“X”) on 11 February 2016 to such an extent that it was a valid reason for Rio Tinto to dismiss him from employment.

An employee of Rio Tinto was “bullied in a serious and unacceptable way by people with whom he worked.” Prior to 11 February 2016, this bullying included putting rocks in X’s bag, hiding X’s bag, painting on X’s work boots and workpants while he was wearing them and making jokes at his expense. Mr Kedwell was not involved in these incidents but the FWC considered that he was “one of the employees who thought the unreasonable conduct to which X was subjected in the workplace was a joke.”

It was alleged that on 11 February 2016 Mr Kedwell, Mr Neuss and Mr Fay were having a discussion outside the bathhouse (on premises). Mr Kedwell, Mr Neuss and Mr Fay then left the workplace and deliberately drove their cars in such a way to block X from being able to make a right hand turn off the Golden Highway into the Mitchell Line of Road. Mt Thorley conducted an investigation in relation to the incident, later dismissing Mr Kedwell and Mr Neuss. Mr Kedwell contended that his dismissal was harsh, unjust and unreasonable.

In considering whether there was a valid reason for dismissal, the FWC noted “it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees.” In this instance the FWC considered that there was “no question that Mr Kedwell’s conduct in making a plan or agreement with Mr Neuss and Mr Fay outside the bathhouse on 11 February 2016 was conduct that took place at the workplace and is therefore not ‘out of hours conduct’.” The harassment of X on the Highway was “continuation of the unreasonable conduct to which X had been subjected earlier” when Mr Neuss and Mr Fay, “on the balance of probabilities”, had thrown rags with petroleum jelly at X’s head.

The FWC considered that Mr Kedwell’s conduct in entering into an agreement outside the bathhouse with Mr Neuss and Mr Fay to try to “block” X from being able to turn right from the Golden Highway constituted a clear and patent breach of obligations under Rio Tinto’s Code of Conduct (Code), and Anti-Discrimination, Sexual Harassment and Bullying Policy (Policy). In particular this constituted a breach of his obligation under the Code to not engage in conduct that would be regarded by a reasonable person as offensive or unacceptable, and a breach of his obligation under the Policy to be accountable for his behaviour and not to bully another worker. The FWC concluded that this conduct constituted a valid reason for dismissal.

This case discusses when an employer can take into consideration the actions of its employee that occurred outside of the workplace as a reason for disciplining its employee. Although the other respondent’s behaviours were worse than Mr Kedwell, in that there was a history of bullying that they were involved in, the one off actions of Mr Kedwell were serious enough to be a valid reason for dismissal. The Commission also made a comment in terms of him witnessing the other bullying behaviour and not doing anything about it.