What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 13 – 19 February 2017

Age Barrier More Prominent for Australian Employees Than Overseas Counterparts
A survey carried out by Manpower Global Solutions has indicated that Australian workers are more likely to face career barriers because of their age than their counterparts in the United States or United Kingdom. The survey considered responses of 4500 global job seekers and found that 37% of Australians considered that their age was a career barrier, compared to 34% of respondents in the UK and 26% in the USA.

Law Council Aims to Address Gender Bias in the Legal Profession
The Law Council of Australia has introduced measures to address gender bias in the legal profession. President Fiona McLeod SC acknowledged that individuals unconsciously “look at affiliating ourselves with people who are familiar to us — for example someone of the same gender, race or who has [similar] physical attributes — it’s human nature to surround yourself with people that are alike.” To address this unconscious bias, the LCA has adopted several measures including face-to-face workshops and online courses to educate lawyers and staff at legal practices on gender discrimination.

Class Action Against Appco for Bullying Rituals
Seven hundred and thirty claimants have signed up to a class action being brought against Appco Group Australia, the biggest class action of its kind in Australia. The class action alleges that workers were underpaid and subject to bizarre workplace humiliation rituals. A number of videos have recently been released which allegedly show such rituals taking place. One of these videos depicts a series of pseudo sex acts being performed in a meeting. Another depicts a “slug race” where workers lay face down on the floor and writhe around with their arms behind their backs. Appco has release a statement to the ABC stating that these activities “were conducted without the knowledge, permission or encouragement of Appco Australia.” The class action is due to commence in the Federal Court next month.

Controversial Job Ad- “No Bogans!”
A small business has attracted controversy over a job advertisement published on Gumtree. The business advertised for an international student to take on an administrative and driving role within the family business.

The advertisement stated:
“12-15 hours per week and must be a computer whizz with full drivers licence. Must have good references. Drug free, also child and pet friendly. No bogans or rough people need apply”

WA Equal Opportunity Commission Acting Commissioner John Byrne indicated that the statement that “no bogans or rough people need apply” would not breach the Equal Opportunity Act. However, the stipulation that the applicant be an international student could breach the act. John Byrne stated “presumably, this employer would reject an application from a student who was not an international student, but if the employer’s decision was based on the race of the applicant, including the person’s ethnic or national origin, it might be unlawful.”

Review of South Australian Courts-Gossip, Bullying, Disrespect
A review commissioned by the Courts Administration Authority (CAA) has revealed “constant tension” between administrators and security staff in South Australian Courts. This tension is demonstrated through infighting, gossip, disrespect, and bullying. The report recommends that the CAA should clarify its operational strategies to allow employees to “work towards common goals.” Further, the report recommends that the CAA implement training in values and ethics, respectful behaviour and resilience, professional conduct and situational awareness. The recommendations of the review have not been implemented, nor has any decision been made to implement the recommendations at this stage.

Former Employee Suing Lorna Jane for Bullying
Amy Louise Robinson is suing former employer, Lorna Jane, for $548,000 in damages. Ms Robinson alleges that her area manager, Megan McCarthy bullied her through social media, as well as calling her demeaning names and picking on her because of her weight. Further Ms Robinson alleges that she was called an “oxygen thief” and a “generator” – a term that was used to describe employees who generated problems for management. One month after commencing employment with Lorna Jane, Ms Robinson claims that she arranged a meeting with a Queensland manager to discuss the treatment that she had been subjected to. After this meeting, Ms Robinson was allegedly told that she “would not encounter the same problems in the future.” However, Ms Robinson alleges that this behaviour continued and Lorna Jane failed to take appropriate or reasonable steps to remedy the abuse, resulting in Ms Robinson suffering a major depressive episode. Ms Robinson claims that she has been unable to work since leaving Lorna Jane in December 2012. The trial is expected to run for four days.

Interesting US Case Where workplace Bullying that Led to Suicide was Considered Involuntary Manslaughter
In the United States, former Dairy Queen manager Harley Branham, has been charged with involuntary manslaughter after allegedly bullying a teenage worker to the point where he committed suicide. Ms Branham allegedly ridiculed the employee, forced him to complete humiliating tasks and threw cheeseburgers at him. The coroner’s jury held that Ms Branham was the principal in the cause of death. Further, the coroner’s jury found that Dairy Queen was negligent in the training of their employees. After the coroner’s jury reached their finding, Ms Branham was arrested. Ms Branham’s preliminary hearing is set to commence on the 25th of March.

US Case-Does Refusing 5 Weeks Annual Leave Constitute Indirect Religious Discrimination?
An employment tribunal has considered whether the refusal to allow an employee to take five consecutive weeks of annual leave to attend festivals amounted to indirect religious discrimination. Mr Gareddu is a practising Roman Catholic from Sardinia in Italy. Between 2009 and 2013 Mr Gareddu was permitted to take five consecutive weeks of annual leave in the summer during which he returned to Sardinia. In 2013, his new manager, Mr Cross, told him that he would not be permitted to take more than 15 continuous working days of leave during the summer school holiday period the following year. Mr Gareddu’s pre-existing arrangements to take a five-week holiday in 2014 were honoured. However, in 2015, his application for five consecutive weeks of annual leave was rejected.

Mr Gareddu challenged the refusal to permit him to have more than 15 consecutive days of annual leave in 2015, arguing that this amounted to unlawful indirect religious discrimination. Mr Gareddu claimed that he required five consecutive weeks of leave as part of his observance of Roman Catholicism. During this time, Mr Gareddu claimed that he attended 17 festivals and events.

The Employment Tribunal held that the refusal to permit Mr Gareddu to have more than 15 consecutive days of annual leave did not amount to religious discrimination. The Tribunal noted that Mr Gareddu did not attend the same festivals ever year, nor was he able to succinctly list the festivals that he attended when first asked. Mr Gareddu’s attendance at any particular festival was considered to be “entirely dependent on the views of his family and friends.” The Tribunal agreed that the manifestation of a religious belief could be supported by attendance at a particular festival. The tribunal stated:
It is the assertion of the specific five week period as a manifestation of the belief which causes difficulties for the claim […] Whilst it is correct that there is an intimate link or nexus between each individual festival and the underlying belief, there is no such nexus in relation to a series of what may be different festivals each year during that particular period. There is nothing in our view in the five week period in itself which provides a nexus. In fact the governing nexus in relation to the five week period is with the family arrangements rather than the underlying religious beliefs.