What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 14 – 20 March 2016

New Federal Disability Commissioner Needed
The Federal Government has placed advertisements online for a disability commissioner sparking hope the role will again be full time. Disability discrimination complaints, particularly in employment, are the biggest single case load (37%) for the Australian Human Rights Commission. For the past few years Susan Ryan has managed both the age discrimination commissioner and disability discrimination commissioner roles.

Bullying Culture with Victorian Firefighters
A review of Victoria’s fire services has found a bullying culture in both the Country Fire Authority and Metropolitan Fire Board, at all levels of the organisation. The review heard “consistent stories of claims regarding poor or bullying behaviour being badly managed.” The report made 20 recommendations including that a single board be established as the governing body for both the Country Fire Authority and Metropolitan Fire Board, replacing the existing boards.

Age Discrimination
Australia’s Digital Pulse, a report commissioned by the Australian Computer Society, has revealed only 11% of the information and communication technology sector’s total workforce of 600 000 is aged over 55. Age Discrimination Commissioner Susan Ryan has suggested this may be because people are often told they’re no longer required and lose their job unfairly. The Human Rights Commission is conducting a national inquiry into employment discrimination against older Australians and those with a disability.

Unfair Dismissal: Discrimination Based on Family Status
Lucia Burnie had been employed by the Tasmanian Country Club Casino for over 4 years, working an average of 37 hours per week. In May 2015, the Country Club became aware that Ms Burnie’s husband was facing criminal charges and decided that Ms Burnie could not continue in her position as a cashier. Ms Burnie was provided with alternative work until 18 September 2015 at a lower rate of pay. Ms Burnie was provided with a letter on 18 September 2015 that stated that she would not be rostered at the Country Club for up to three months.

The FWC held that the decision not to offer Ms Burnie work for three months was a decision to dismiss her. This dismissal was not affected by the fact that the Country Club was willing to offer Ms Burnie employment in the future. The FWC noted the unfair dismissal protections for casual employees “would be meaningless if an employer could remove a casual employee from his or her position and then say well he or she is still an employee albeit there is no work for the employee unless the employee accepts a lower paid and substantially different position.” Accordingly it was found that Ms Burnie was unfairly dismissed.

Unfair Dismissal: Facebook Posts not Derogatory
Robyn Vosper was employed on a permanent part-time basis by Cakes for Karen, becoming a transferring employee upon the sale of the business to Solibrooke Pty Ltd. Ms Vosper was advised of her dismissal and given one week’s notice on 21 September 2015 by Solibrooke. Ms Vosper was offered casual employment but she declined this offer. On the 22nd of September Ms Vosper sent a Facebook message to her sister stating: “my suspicions about being forced to casual were right. Last night I was given a week’s notice on my part time job and offered a casual position.” She also posted a private Facebook message: “I just wanted to let you know that I am finishing up at Angie’s at the end of the week. Time to move on with a new focus. Thanks for all the hard work you have given Karen and I.” the reply asked “what happened” and Ms Vosper responded “Angie and Lloyd did my 3 months review and explained that they no longer want to have the part time position and gave me a weeks notice. They offered me casual however I have decided to move on.” That night Mr Lloyd terminated Ms Vosper employment with immediate effect due to “breaching our request for confidentiality.”

The FWC found that there were no derogatory remarks or confidential business information contained within Ms Vosper’s Facebook post. Rather they noted that “we do not live in a society where employees are prohibited from discussing their employment status or their treatment at work with others.” Accordingly the conduct did not constitute serious misconduct, and the dismissal on 22 September was not in accordance with the small business code. Further the FWC found the initial dismissal on 21 September was unfair – it was not a genuine redundancy, nor could Ms Vosper be dismissed for poor performance or conduct without being warned or given an opportunity to respond. The FWC found that the need to move to reorganise working hours within the business did not justify the lack of a valid reason for termination and the lack of procedural fairness. Accordingly it was held that the termination was unfair, unjust and unreasonable.

Offensive Comments About Religion : Unfair Dismissal Because Previous Comments Not Dealt with Prior to Dismissal
Joseph Johnpulle was dismissed after he was alleged to have made offensive comments about Islamic State and the Taliban to a colleague of Middle Eastern heritage on January 7, 2015. On the 16th of January 2015 Mr Johnpulle was given a formal letter of allegations and asked to respond. The first allegation related to conduct on January 7 2015 when Mr Johnpulle made inappropriate comments to Mr Karzi (a co-worker) “with respect to the Taliban and its activities and, that in doing so, he implied that Mr Karzi would have some knowledge or would have some sympathy with the activities of the Taliban.”

The FWC noted that the matters contained in the second, third and fourth allegations of the letter (prior instances where Mr Johnpulle was alleged to have made comments to Mr Karzi) were not relevant as to the determination of whether there was a valid reason for dismissal, but could be taken into account in assessing whether the decision was harsh, unjust or unreasonable. These three previous instances of conduct had been dealt with informally by Toll, with Mr Johnpulle agreeing that he would not engage in such conduct again.

The FWC found that the decision to terminate Mr Johnpulle was “harsh for the personal consequences of it for him and because of the severity of the punishment when little has been done with respect to his past behaviours.” Considering the absence of earlier sanctions with regard to Mr Johnpulle conduct, the decision to dismiss in these circumstances was severe.

Despite finding that Mr Johnpulle had been unfairly dismissed, the FWC noted that Mr Johnpulle had engaged in behaviour that was unacceptable and disrespectful within the modern workplace. The FWC stated that the evidence suggests “there is either a lack of awareness by Mr Johnpulle of appropriate workplace conduct or a disdain of the need to treat others at work with respect and to be sensitive to cultural, religious and ethnic backgrounds.” Further the FWC warned that Mr Johnpulle should not feel vindicated by this decision.
The FWC did say that in relation to Mr Johnpulle’s previous conduct, “appropriate formal disciplinary action should have been taken against Mr Johnpulle in the past so that he was fully aware that his conduct, should it persist, would not be tolerated. While its Code may be clear on what is tolerable, this is undermined if such behaviour continues to be tolerated by inaction or mild rebuke.”

The Commission went on to say, “I am satisfied that the decision to terminate Mr Johnpulle’s employment was harsh for the personal consequences of it for him and because of the severity of the punishment when little has been done with respect to his past behaviours. Whilst I do not say that Toll condone the behaviour of Mr Johnpulle I consider that the decision to dismiss is severe given the absence of any earlier sanctions. In circumstances where the personal effect of the decision to terminate employment had not been so sever my decision may well have been different.”

The Commission ordered Mr Johnpulle be reinstated by appointing him to another position in a different work area on terms and conditions no less favourable than those on which he was employed immediately before the dismissal.

This case placed a huge onus on the Employer to more seriously manage the previous conduct of the employee before deciding to dismiss him for similar conduct. If you want to ensure that your managers and supervisors are equipped and skilled to manage a workplace complaint correctly then contact Franca at EEO Specialists on (08) 6102 4411 to find out about the next public course for managers and supervisors.