What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 15 – 21 February 2016

Overseas Students Underpaid
Research undertaken by the University of Sydney Business School has indicated that more than half of the international students working part-time in Sydney earn less than the minimum wage and more than a third are being paid $12 an hour or less. Academic Stephen Clibborn said that these findings suggested although students were aware of the minimum wage, “because of their inexperience in the labour market, because of how they perceive their own English language skills they feel that they are not able to find a legal paying job … so they do feel stuck in these jobs that do not pay the award pay.” Chinese students suffered the highest rates of underpayments, with more than 70% reporting being paid below the minimum wage.

Regular Age Discrimination in Qld
Australian Age and Disability Discrimination Commissioner Susan Ryan has confirmed that some Queensland companies are routinely breaching anti-discrimination laws by specifying age limits in their advertisements. The companies involved requested applications solely from people in the 18-25-age bracket. Ms Ryan commented that a survey conducted in 2015 revealed that “27 per cent of people who were older than 50 had been discriminated against in the last 12 months.”

Need for Full-time Disability Commissioner
Disability advocates are calling upon the Turnbull government to appoint a full-time disability commissioner. This portfolio was given to Age Discrimination Commissioner Susan Ryan after the previous disability commissioner’s term ended in July 2014. Currently the majority of complaints received by the Human Rights Commission relate to disability (31%), followed by race (24%), the Human Rights Commission Act (20%), sex (19%) and age (6%). Advocates including Disability Australia president Craig Wallace have referred to the current situation as “nonsensical,” believing that considering the significant workload, there is a need to appoint a full-time disability commissioner as soon as possible.

Discrimination Based on Disability
Peter Norman sustained injuries in a sky diving accident in February 2014. In February 2015 his employer requested a medical assessment of Mr Norman’s capacity to perform his role. This assessment identified a major issue affecting Mr Norman’s capacity to undertake his position. Accordingly a meeting was held with Mr Norman on 25 March 2015, where this report was presented. At this meeting, Mr Norman presented a report from another doctor, which cleared him to return to work on 30 March 2015. After this meeting, the employer requested a further report from the medical examiner. A show cause meeting was held where Mr Norman was given a copy of this supplementary report. At this meeting, Mr Norman received a show cause letter, to which he responded. His employment was later terminated on 15 April 2015.

The Fair Work Commission held that this dismissal was harsh, unjust and unreasonable. The Commission found that there was no valid reason for dismissal – Mr Norman could perform the requirements of his position. It was noted that in these circumstances “it would be wrong to conclude that, because the applicant may potentially benefit from a reintegration program, he was unable to perform all the inherent requirements of his position.” Accordingly Mr Norman was reinstated to his former position.

Employee Validly Dismissed for Inappropriate Comments to Other Staff
Ms Budden was employed as a cook at a café by Finke Enterprises. She approached her employer about being involved in a breast cancer fundraiser – namely donating some of the profits made during the month of October. In September, Ms Budden had her hair dyed fluorescent pink in preparation for the fundraiser – this was not an action that she had discussed with her employer. Ms Budden received a formal verbal warning relating to (i) the colour of her hair, and (ii) other employees feeling uncomfortable and scared of Ms Budden. Accordingly Ms Budden was given, and complied with a direction to change the colour of her hair. Ms Budden attended a birthday at the café where the Commission found that she made derogative comments about the management and owners to other staff in relation to having to change her hair colour. The next day Ms Budden’s employment was terminated.

The Commission found that there was a valid reason for the termination of Ms Budden’s employment – the derogative remarks and inappropriate interactions that she had had with other staff. The fact that she had dyed her hair fluorescent pink was not an operative reason for dismissal in these circumstances. Accordingly the Commission found that the dismissal was not harsh, unjust or unreasonable.

Unfair Dismissal Evidence Did not Support Bullying Allegation
Maria Lockwood was employed as a “Second in Charge.” Ms Lockwood received a letter of termination from her employer that alleged that she had told a staff member that they would have “no hours next week or an opportunity for a full time position within this company.” Further it stated that she encouraged the employee to look for a job elsewhere and introduced them to “businesses” near the store. This behaviour was referred to as “bullying a staff member on a continual basis,” and actions that had been taken where “it was not [her] place” to make such comments to the employee.

The Commission found that Ms Lockwood’s comments to the employee were a genuine, caring and reasonable “attempt to assist a casual employee who was new to the local area, was not getting many hours of work from the Respondent, and who needed additional hours of work to obtain such additional work.” The employee needed more work in order to pay her rent, and like other casuals at the time, wasn’t getting many hours as the store was not busy. Accordingly the Commission found that as there was no valid reason for dismissal, Ms Lockwood had been unfairly dismissed.