What’s been happening in Australia in Relation to Sexual harassment, Discrimination and Bullying from 15-21st June 2015

Several different announcements in relation to reviews and changes in law.

The Federal Government’s disability wage assessment legislation, has passed the senate but with criticism. The legislation establishes a scheme for supported employees with intellectual impairment. A spokesperson for People with Disability said the legislation would deny people with intellectual disabilities full wage entitlements and prevent many from pursuing back pay against the Commonwealth through the courts. The Tool was found to be discriminatory against people with intellectual disability by the High Court. It is suggested that the new legislation still fails to address fundamental discrimination against people with disability.

In April 2015 the AHRC (Australian Human rights Commission) launched a national inquiry into age and disability discrimination and it has released an Issues paper that outlines a range of issues that will be examined relating to age discrimination in the workplace. The Inquiry follows a national survey into age discrimination by the AHRC, which found 28% of workers over the age of 50 have experienced age discrimination.

Many employers are not aware that there is no longer a compulsory retirement age in Australia, and it is unlawful to force retirement upon an employee because of their age. In addition, under the Fair Work Act 2009, employers are required to consider requests for flexible working arrangements for employees who are aged 55 or older – and such a request can only be refused for reasonable business grounds.
With an aging population, employees are likely to remain in employment for a longer period of time and employer’s need to be aware of actions that may constitute discrimination to older employees.

The ACT government has commissioned an independent review of Canberra Hospital’s training culture to examine allegations of bullying. The review will focus on trainee specialist doctors. ACT Health has been faced with reports of bullying in its maternity department for several years.

Australian companies publicly report less information on equal opportunities for women in the workplace than their UK and US counterparts as stated in the Equal Opportunity for Women in the Workplace: A Study of Corporate Disclosure report.

In other news recent court cases included-

A mechanic lost his unfair dismissal case after he was sacked for an alleged abusive outburst at his boss at work about Christmas drinks. Mr Ryman worked at a small family business, which employed only 5 people. His employers were organising Christmas drinks for staff. The employer said the following conversation took place:

Mr Ryman yelled ‘I’m not f*cking going because I’m not f*cking drinking with f*cking Captain Klepto.’ Mr Ryman alleged he said: ‘I don’t think I’ll go thanks’.

Commissioner Cambridge favoured the employer’s version of event. Cambridge found Ryman’s outburst to be serious and wilful misconduct sufficient to justify the summary dismissal under the Small Business Fair Dismissal Code.

Under the Code, a small business employer needs only to prove they have a reasonable belief their employee’s actions warranted summary dismissal. This contrasts significantly to organisations that don’t come under the protection of the Code so employers need to be mindful of this before terminating an employee for abusive language.

A project management company has been ordered to pay a former employee $170,000 after a court ruled its parental leave policy breached National Employment Standards. Mr Scullin brought the action against his former employer Coffey Projects after he was made redundant following a period of leave to care for his newborn twins. He did not take unpaid ‘parental’ leave because of an incorrect addition in the parental leave policy that stated an employee must be the child’s ‘primary care giver’.

The court found that the Fair Work Act requirement for unpaid parental leave is that an employee ‘has or will have a responsibility for the care of the child.’ The Act provides that an employee shall return to their pre-parental leave position, or if the position no longer exists, to an available position nearest in status but this is not what was offered to Mr Scullin.

Turner J ruled that Coffey breached the Act by adding the words ‘primary care giver’ to its policy. The legislation did not require Scullin to have primary responsibility in order to be entitled to unpaid leave. Turner J found Coffey unlawfully refused Scullin unpaid parental leave because of the addition of these words and therefore did not afford him his rights under the Fair Work Act to return to his previous full-time position when his leave finished.

This is a costly reminder that any policies and procedures an employer uses must be consistent with the legislation.

A Toll Holdings employee has been reinstated despite the Fair Work Commission noting his behaviour as highly offensive. Mr Johnpulle was accused of making inappropriate comments regarding religion and ethnicity. In one instance he attributed the conduct of the Islamic State in Syria and Iraq (ISIS) to a colleague of Middle Eastern heritage. The FWC Commissioner said that a lesser penalty should have been open to Johnpulle as it was to another colleague previously.

It is important before an employer fires an employee they make an assessment about how they have previously treated similar behaviours from other employees.

Currently before the courts-

Ms Oldham, former senior vice president of an IT firm, Capgemini is suing the firm and former chief executive, Mr Thorley, claiming she was denigrated, marginalised and sexually discriminated against. She alleges that Thorley encouraged a ‘hostile working environment for women’ and gave preferential treatment to male colleagues. The case is currently before the Federal Court.

Employers have a responsibility to ensure that employees (male or female) are not treated less favourably than their gender counterpart due to gender.

If you are unsure if your policies and procedures in relation to equal opportunity, bullying and complaint management are accurate and up to date then contact Franca at EEO Specialists. To book in a review, email, franca@franca.com.au