What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 15 April 2024 – 21 April 2024

Project Manager Quits During Investigation into Workplace’s ‘Toxic Culture’

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a project manager who resigned from his employment during a workplace investigation. The key issue was whether the worker’s resignation amounted to a (constructive) dismissal under the Fair Work Act. In this case, the FWC had to determine if the employer’s actions left the worker with no choice but to resign.

The worker was employed as a project manager in March 2021. In mid-2023, issues arose regarding the payment of a Site Uplift Allowance (SUA). The worker and several employees received the SUA in their contracts, but two of their co-workers “were stood down over the SUA issue.” Due to this incident, the worker said that there was “unrest among employees.” The worker called a meeting with the managing director and other staff members to discuss the matter. During the meeting, the managing director expressed concerns about the worker’s conduct and the alleged “toxic work culture” on his project site.

Among many allegations, the employer said it received a complaint from another employee regarding the approval of timesheets by a project manager, “when the project manager knew, or thought to have known, that the information stated was false and/or in contradiction of the [employer’s] policies and procedures.” Following the meeting, the worker was immediately suspended, pending an investigation into his conduct. The worker claimed that he was left in the dark about the reasons for his suspension for weeks.

However, the FWC found evidence suggesting that the worker was informed about the investigation and how it related to his alleged interference with the site visit and investigation conducted by another employee. After considering the evidence and submissions from both parties, the FWC found that the worker was not dismissed within the meaning of the Fair Work Act. The FWC determined that the employer had not repudiated the employment contract, and the worker had not been forced to resign due to the employer’s conduct. The FWC highlighted that the employer had reasonable concerns that led to the investigation into the worker’s practices. The worker was stood down on full pay pending the investigation, and the employer’s solicitors communicated with him throughout the process. The worker also participated in an interview with the investigator. Consequently, the worker’s application was dismissed.

Employer Sacks Manager after Out-Of-Work Injury: Was it Unfair Dismissal?

The Fair Work Commission (FWC) recently dealt with a case involving the dismissal of a worker from his position as a store manager due to his physical incapacity following a serious motor vehicle accident. The decision highlighted the interplay between an employee’s capacity to perform their duties and an employer’s right to terminate employment. The FWC had to determine whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

On May 7, 2023, the worker was involved in a severe motor vehicle accident unrelated to his employment as the store manager of the employer. As a result of the crash, the worker sustained significant injuries, including a broken wrist, a fractured tibia, and a brain injury. Due to the worker’s reduced capacity, the negative impact on the store’s performance without a full-time manager, and the worker’s Dr’s advice concerning his mental state, the employer decided to remove the worker from his role as store manager. On December 20, 2023, the worker was informed of his dismissal and offered the opportunity to continue working in a part-time sales role, which he rejected.

The FWC found that the worker was dismissed within the meaning of s 386(1)(a) of the Fair Work Act 2009, as the termination of his employment was on the employer’s initiative and not agreed to by the worker. The FWC said that based on the medical evidence available at the time of dismissal, the FWC was satisfied that the worker was not capable of performing the inherent requirements of his role as a store manager and that “it was more likely than not that he would not have been able to do so for a considerable period after his dismissal.” Thus, the FWC said that the employer had a valid reason for the dismissal related to the worker’s capacity, and the dismissal was not harsh, unjust, or unreasonable.

Discrimination Against Australians with Autism Causes Employment Inequalities

Senior Lecturer and Course Director in the Charles Sturt School of Education Dr Rahul Ganguly explores the struggles of autistic Australians to secure fair employment considering World Autism Awareness Month during April.

Many autistic people have defied societal expectations and surpassed barriers to their rights to education, employment, and social inclusion to achieve greatness. Australians living with Autism Spectrum Disorder (ASD) can face specific challenges in day-to-day life, as distinct from others, which can be compounded with age.

Although the research on job losses among autistic employees is sparse, there is evidence to indicate that the reason for high job loss rates is due to the inability of employers to address autistic employees’ interpersonal and social challenges rather than the job characteristics. Furthermore, 60 per cent of the study sample reported encountering bullying and other workplace challenges, ultimately resulting in termination or voluntary resignation. In other words, employers’ hiring, and termination decisions were related to the internal characteristics of autistic employees.

Research indicates that autistic people can successfully maintain employment when provided with appropriate workplace adjustments, a supportive work environment and adequate social support. Therefore, creating a more inclusive, flexible employment environment would truly pay off on a broader socio-economic scale.

Federal Court Judge Finds Bruce Lehrmann Raped Brittany Higgins, Defamation Case Fails

The Federal Court has found on the balance of probabilities, Bruce Lehrmann raped Brittany Higgins at Parliament House in 2019.

On Monday, Justice Lee delivered his judgment in Mr Lehrmann’s defamation case against Network Ten and journalist Lisa Wilkinson, finding the pair had sex in the office of Senator Linda Reynolds, that Ms Higgins did not consent, and that Mr Lehrmann was indifferent to whether she had consented.
Ultimately, this means Mr Lehrmann’s defamation claim against Network Ten and Lisa Wilkinson has failed, and the evidence had proven Network Ten’s substantial truth defence.

Fair Work Commission Confirms Employers Can Require Employees to Attend Workplace

In November 2023, the Fair Work Commission (FWC) published a determination under its increased powers in relation to flexible work arrangements. The FWC emphasised the importance of face-to-face contact in the workplace and the right of employers to require employees to attend the workplace to perform their role.

In Gregory v. Maxxia Pty Ltd [2023] FWC 2768, the employee requested to work entirely from home because:

• He had a school aged child who he cared for every second week.
• He suffered from inflammatory bowel disease requiring urgent and frequent trips to the bathroom.

After genuinely seeking to reach an agreement to accommodate the employee´s circumstances, the employer rejected the application for a flexible working arrangement on reasonable business grounds pursuant to s. 65A(3)(d) of the Fair Work Act 2009.
The following factors were relevant to the employer’s decision:

• The employer is the sole provider of salary packaging services for the South Australian Government. Its contracts require it to answer 99 per cent of calls within three minutes and emails within two business days. The employer would incur significant financial penalties if its contractual obligations were not met.
• The employee was failing to meet daily productivity targets.
• It was beneficial to observe and support the employee in the office.
• The employer wanted to remain fair and consistent across the business with flexible working arrangements.
• The employee was “struggling mentally” and proper support could not be provided remotely.
• It was desirable for the employee to work in the office with other employees to contribute to team culture, training, and discussions.

The employee made an application to the FWC to deal with a dispute under s. 65B of the Fair Work Act 2009. The FWC dismissed the employee’s application stating that the employer’s decision to refuse the employee’s application for a flexible working arrangement was made on reasonable business grounds.
The FWC found that it was reasonable for the employer to refuse to allow the employee to work 100 per cent from home and to require him to attend the office 40 per cent of the time.

Council Refuses to Recognise Survey Results of Women’s Experiences in Local Government

A survey conducted by the Australian Local Government Women’s Association (ALGWA) on the bullying and harassment of women councillors in local government has revealed ongoing issues of inequity. The results, released at ALGWA’s March conference, found that overwhelmingly women councillors experienced mental and physical health impacts due to harassment and bullying they faced in the workplace. However, a motion brought to Randwick City Council to acknowledge the results and commit to providing a safe working environment was shut down.

For Greens Councillor Raphaela Pandolfini, who brought forward the motion, the survey was a chance to start a conversation, “I do think that things go unchecked. I’ve specifically spoken to lots of younger women councillors from different states who won’t be running again, because of the experience that they’ve had,” she told City Hub.

Looking ahead, ALGWA will be partnering with Western Sydney University, University of Sydney, and Australian National University to deliver a more comprehensive study on the experiences of women in local government. The project, titled ‘Experiences of Women in Local Government’, is set to begin conducting research in 2024. Research will focus on developing “effective strategies of collective action to make effective structural change,” according to a ALGWA statement.

Victoria Public Sector Workers to Receive Paid Menstrual Leave

Public and community sector workers in Victoria will soon have access to paid menstrual and reproductive leave. Under a new collective agreement signed by the state’s Treasurer, employees dealing with menstrual pain, menopausal symptoms, and IVF treatments could see an additional five days added to their sick leave entitlement of 10 days. The move comes as discussion surrounding paid menstrual leave continues to gain traction, with information about conditions like endometriosis becoming more widely available to the public.

Endometriosis is a condition where tissue like the lining of the uterus grows outside the uterine cavity. This tissue behaves as it would inside the uterus and can cause severe pain with each menstrual cycle. According to a 2019 survey, women, and gender-diverse individuals with endometriosis may require up to four days off per month due to the severity of their symptoms. Meanwhile, the Australian Institute of Health and Welfare has reported that there were 40,500 endometriosis-related hospitalisations between 2021 and 2022.

Last February, Spain became the first European country to mandate paid menstrual leave, as part of broader legislative moves in reproductive and transgender rights. Women and individuals experiencing menstrual pain have been granted up to three days of paid leave each month, extendable to five days. Similar policies are also in place for Japan, Indonesia, South Korea, Taiwan, Vietnam, and Zambia, according to a report by UK-based PinkNews.
In 2022, a group of Australian union began pushing for a policy that would offer employees suffering from painful menstrual or menopause symptoms up to 12 days of paid leave annually.

Critics said such a policy could create perceptions of inequality in the workplace and cause resentment among those who do not need or qualify for these leaves. But the small number of Australian organisations with similar policies have reported benefits such as increased productivity and employee engagement, with one firm stating that “women’s engagement rose to a whopping 71%.”

GP Banned From Practising after Sexually Touching Patient, Having Affair with Another

A doctor has been barred from practising for five years after sexually touching one of his patients and having an affair with another.

Evidence against Fady Malak showed a pattern of professional misconduct and inappropriate sexual behaviour with his patients, a tribunal found. In 2021, Malak pleaded guilty in the Gosford Local Court to two counts of aggravated sexual touching of a person without consent.

The Health Care Complaints Commission sought for the NSW Civil and Administrative Tribunal to revoke his licence to practice. A judgement, headed by Acting District Court Judge Ian Coleman, released today found Malak was guilty of professional misconduct, and prohibited him from practising for five years.

Queensland Parliamentary Inquiry Backs Full Sex Work Decriminalisation Reforms

Sex work should be treated as “no more and no less” than other industries, a Queensland parliamentary inquiry has ruled. The Housing, Big Build and Manufacturing Committee tabled its recommendations before parliament today, indicating its support for full sex work decriminalisation. It comes as the government considers a bill to remove laws that prohibit most forms of sex work. The charity Respect Inc QLD estimates around 90 per cent of sex workers are operating illegally under current laws.
The parliamentary committee’s report contained only two recommendations: that the bill pass as is, and that sex work be treated the same as other industries under planning law. The second recommendation would prevent councils from creating exemptions in their planning schemes that single out sex work.