What’s been happening in Australia in relation to sexual harassment, discrimination, and bullying from 13 May -19 May 2024

Dismissed for posting negative comments about management

The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim lodged by a worker against her employer, a hotel. She worked as a casual sales representative and bar supervisor. 

The employer met with the employee to address performance issues such as sending herself on breaks during peak trade, closing the bar without approval, customer complaints, and not arriving to shifts on time. The worker also used social media platforms to vent her opinions about the management team even after being spoken to about what constituted appropriate social media usage. 

The FWC addressed two issues – one was whether the worker could make an unfair dismissal claim given she was employed on a casual basis. The other was whether the employer had valid reasons to dismiss her.  

The case examined the details of casual employment and the factors that determine whether a casual employee is employed on a “regular and systematic basis” and has access to unfair dismissal protections. 

The FWC rejected the employer’s jurisdictional objection and found that the worker’s employment as a casual employee was on a “regular and systematic basis”. The Commission emphasised that “it is the employment that must be on a regular and systematic basis, not the hours worked.”  

 However, the FWC said the employer had valid reasons for dismissing her due to the behaviours outlined above. 

Is asking female colleagues to “get the coffees” discriminatory? 

The FWC recently considered whether requesting a female employee to “get the coffees” was discriminatory in the matter of Shivaani Polley v WSP Australia Pty Ltd [2024]. The Commission pointed to the possibility of discrimination when asking employees to perform gender-based tasks, however, it is also necessary to consider the context and reason for the request. 

Ms Polley was a senior engineer for WSP. During a client workshop, she was asked by another male colleague, Mr Benjamin to “get the coffees”. Ms Polley was the only woman and the second-most senior person among the nine attendees. She felt “intensely embarrassed” and found the request publicly humiliating.  

The FWC concluded that Mr Benjamin did not ask Ms Polley to “get the coffees” because of her gender but because she was the only person not making a presentation and in fact, he had organised the other catering needs for the meeting.  Therefore, Mr Benjamin’s request did not amount to gender-based discrimination. 

The court said, “Whilst it is a fact that Ms Polley was the only woman in the meeting, and it is understandable she may have formed the impression that Mr Benjamin was asking her to get the coffees because of her gender, she was not aware at the time of the context of why he was asking her, and the evidence supports the conclusion it was not because of her gender.” 

This case reads as a series of differences, misunderstandings and difficulties in the working relationship between Mr Benjamin and Ms Polley. If picked up earlier and addressed by a skilled mediator, they may not have resulted in the perception by Ms Polley of being bullied and harassed by Mr Benjamin. 

Age Discrimination Commissioner calls for a convention on the rights of older persons 

 Australia’s Age Discrimination Commissioner, Robert Fitzgerald AM, has called on the Federal Government to formally endorse the creation of a UN Convention on the Rights of Older Persons. He said this remains a missing piece in the international human rights framework. 

Currently, there is no binding international instrument dedicated to the rights of older persons, like there is for race, sex, children, and disability. This is despite the growing trend of ageing populations, both globally and in Australia. Commissioner Fitzgerald officially backed the development of a UN Convention, saying the time has come for Australia and the world to better safeguard the rights of older people. 

Commissioner Fitzgerald added that Federal Government support for a UN Convention would send a strong message that Australia values the human rights of older people and is committed to giving voice and visibility to their rights and the issues that affect them. It would further inform a comprehensive national human rights framework, as the Commission’s ongoing Free + Equal project has long proposed. 

Victims of sexual assault to be immune to defamation lawsuits

Victims of sexual assault and harassment will be immune to defamation lawsuits for reporting crimes to Victorian police under new legislation. This follows concerns that the threat of legal action was having a negative effect on people coming forward. 

The state government is set to introduce the justice legislation amendment (integrity, defamation and other matters) bill, which will also make it easier to gather evidence in family violence matters. 

If passed, it will extend the existing defamation defence of absolute privilege to reports made to police. The reform would protect any Victorian who made a report to police, granting them complete immunity if their alleged perpetrator tries to bring a defamation suit against them. 

Victorian Attorney General Jaclyn Symes said: “We know how hard it can be for victim-survivors to report what happened to them. These reforms remove some of the barriers they face in their bravery by coming forward. With these changes, we’re making sure our justice system responds better to serious offending like family violence and sexual assault and is more accessible to all Victorians.” 

The paper said between 70% and 90% of Australians who had been sexually assaulted “had not reported their most recent assault to police”.