What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 17 – 23 July 2017

Fair Work Commission Holds Unfair Dismissal of Cleaner
The Fair Work Commission has found that contractor, Joss Facility Management, unfairly dismissed their employee, Veronica Bennett. Ms Bennett, a cleaner, took unpaid sick leave in August 2016 in order to have surgery on her foot and ankle. In early 2017, she maintained regular communication with Joss Facility’s return-to-work co-ordinator, telling them she would be able to confirm her return pursuant to a doctor’s appointment on February 10. However, Ms Bennett was dismissed on February 6 via a telephone call during which Joss Facility’s injury manager deemed her unable to perform “inherent requirements” of the job. Fair Work Commissioner Ian Cambridge declared that there was “no proper basis for the employer forming the view Ms Bennett could not undertake the requirements of her job.” He has ordered both her reinstatement and payment of lost wages.

Per Capita Report Reframes the Question of Australia’s Ageing Workforce
A new report by Per Capita, entitled ‘What’s Age Got To Do With It? A New Advocacy on Ageing and Work’, has found that public commentary tends to overstate the degree to which older workers face age-based discrimination, despite the fact that reported cases of such discrimination are higher among younger workers. By way of example, the report highlights the Willingness to Work inquiry into age-based discrimination. This focussed exclusively on the experiences of people over 50 years old and in so doing disregarded the reality that younger workers also faced such discrimination. Per Capita’s Professor Philip Taylor notes that the issue needs to be reconsidered more broadly as one of “generational solidarity”.

Nonetheless, the report did warn that artificial intelligence would pose increasingly great challenges to ageing workers. It called for reform to mitigate these issues through “innovative policy proposals” and potentially a “national workforce ageing strategy”. Notably, it recommended that the national Restart programme be replaced with a “wage subsidy and job guarantee for older workers”, akin to the UK model.

Unfair Dismissal Despite Embargo Breach of JK Rowlings Book Release
The Fair Work Commission has found a Brisbane depot manager to be the subject of an unfair dismissal by courier company, XL Express Pty Ltd. In November 2016, copies of JK Rowling’s ‘Fantastic Beasts and Where to Find Them’ were delivered a day earlier than permitted under a global embargo as a result of staff misconduct. XL Express claimed the depot manager had failed to ensure that his staff properly followed the relevant procedure regarding embargo consignments, which had effectively damaged the company’s reputation. In response, the deputy manager maintained that the event had occurred “not through any fault on his part” as he had been on leave the day it purportedly took place. In light of the fact that XL Express was neither penalised nor lost the contract with their book distributor, the Fair Work Commission held the dismissal was disproportionate and overly harsh. It has ordered XL Express to pay the manager wages in the amount of $48,432 as well as superannuation contributions.

XL Express had further raised allegations of bullying against the depot manager; however, no proof was brought forward to substantiate these accusations.

Disability Support Agency Underpaid its Staff
Challenge Community Services has co-operated in paying the $371,876 that it owed 18 of its staff members. Previously, the Fair Work Ombudsman had found that the disability support organisation – one of the largest in NSW – had failed to adequately pay its workers in wages and superannuation over a six-year period. In one case, it had underpaid an employee by $63,000. The Acting Fair Work Ombudsman, Mark Scully, said the case “highlights the accountability and responsibility required of employers engaged with vulnerable workers such as those with a disability.”