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

False Allegations Valid Reason for Dismissal
Mohammed Ayub made an application for an unfair dismissal remedy (in the case of Ayub v NSW Trains [2017] FWC 1106) in respect of the termination of his employment by NSW Trains. Mr Ayub was employed as a Customer Service Team Leader from May 1982 until his dismissal in January 2016. Mr Ayub’s employment history was quite colourful – he had received a number of sanctions for breaches of the NSW Trains Code of Conduct including fines, suspensions and final warnings.

Between December 2014 and May 2015, Mr Ayub was involved in two incidents. The first incident occurred in December 2014 when Mr Ayub elected to absent himself from work without approval or authorization. Following this incident, Mr Ayub was issued with a final warning. The second incident occurred in 19 May 2015, when Mr Ayub allegedly abused Mr Singh, a Platform Manager, over the phone. It is alleged that Mr Ayub made a number of comments to the Platform Manager including “you should cut your hair and throw your turban away” and “Punjabis are very good people but you are disgusting.” Mr Ayub was suspended from work while an investigation was conducted into this incident. The Disciplinary Review Panel determined that Mr Ayub’s conduct had breached a number of his obligations under the Code of Conduct, Transport Prevention and Management of Bullying and Harassment Policy, and Transport Discrimination Free Workplace Policy. The DRP recommended that Mr Ayub be suspended for two weeks without pay and required to attend counseling in Diversity and Inclusion Awareness. These incidents were not considered in detail by the FWC, as the FWC considered that these incidents were not ultimately the reasons NSW Trains relied upon to terminate Mr Ayub’s employment.

Between May 2015 and July 2015, Mr Ayub also made a number of allegations against his co-workers. These allegations ranged from co-workers have underworld associations, to corruption and allegations of bullying and harassment. Despite numerous requests, Mr Ayub did not provide information to substantiate these allegations. Following an investigation into false allegations, Mr Ayub was dismissed.

The FWC held that the false allegations made by Mr Ayub provided NSW Trains with a valid reason to terminate his employment. The FWC noted that “at no time either before the Commission proceedings, or during them, did Mr Ayub proffer the least shred of evidence” to support these allegations. Instead, Mr Ayub’s “attitude seemed to be that if someone made an allegation against him he was entitled to respond with his own allegations – however baseless.” The FWC stated, “no employer should be expected to tolerate this behaviour.” The FWC found that Mr Ayub’s dismissal was not harsh, unjust or unreasonable. Mr Ayub’s application was dismissed.

Interesting Overseas Cases About Wearing of Head Scarf at Work
This week, the Court of Justice of the European Union has issued a press release relating to two cases where employees were prohibited from wearing a headscarf in the workplace.

The Case of C-157/15, G4S Secure Solutions concerned the dismissal of Samira Achbita, from her position as a receptionist. In April 2006, Ms Achbita started wearing a headscarf. Her employer, G4S Belgium, informed Ms Achbita that there was an unwritten company rule that prohibited employees from wearing visible signs of their religious/political beliefs in order to maintain a position of neutrality. On 29 May 2006, G4S Belgium amended their workplace regulations to include a provision that provided that “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs.” This provision came into effect on 13 June 2006. On 12 June 2006, Ms Achbita was dismissed for her continuing insistence on wearing a headscarf. The Belgian Court of Cassation asked the European Court of Justice to consider “whether the prohibition on wearing an Islamic headscarf, which arises from a general internal rule of a private undertaking, constitutes direct discrimination.”

In May 2016, Julianne Kokott, an Advocate General of the ECJ gave her opinion on the case, suggesting there was no direct religious discrimination. Mrs Kokott stated that she did not believed there could be “less favourable treatment” where a Muslim employee is banned from wearing an Islamic headscarf, provided that that ban is founded on a general company rule of religious and political neutrality. In this instance, Mrs Kokott believed that the G4S ban was an appropriate and proportional policy in line with the company’s objectives of religious and ideological neutrality. Mrs Kokott explained that while an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace. Mrs Kokott noted that wearing of a headscarf should not be seen differently to an atheist who expresses an anti-religious stance through dress, an employee who wears items that display an allegiance to a political party, or an employee who wears a t-shirt with the slogan “Jesus is great.”

The European Court of Justice held that the prohibition on employees displaying visible signs of their political, philosophical or religious beliefs did not constitute direct discrimination as it treated applied to all employees without differentiation. The ECJ stated that if an internal rule introduces a difference of treatment that is indirectly based on religion or belief, it would not amount to indirect discrimination if it were justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary. The ECJ noted a legitimate aim might include the “pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary.”

The second case, (Case C-188/15, Bougnaoui and ADDH)concerned the dismissal of Asma Bougnaoui from her position as a design engineer. Ms Bougnaoui commenced employment with Micropole on 15 July 2008 under a contract of employment of indefinite duration. Following a complaint from a customer, Micropole informed Ms Bougnaoui of the need for neutrality and requested that she refrain from wearing her headscarf. The French Court of Cassation asked the Court of Justice to consider whether the “willingness of an employer to take account of the wishes of a customer no longer to have that employer’s services provided by a worker wearing an Islamic headscarf may be considered a ‘genuine and determining occupational requirement’ within the meaning of the directive. “

The European Court of Justice stated that in the absence of an internal rule which prohibits the wearing of any political, philosophical or religious sign, “the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination.”