What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 17 – 23 May 2021

Commonwealth Parliamentary Review Now Open for Submissions And Interviews

The Australian Human Rights Commission has begun inviting contributions to its Independent Review into Commonwealth Parliamentary Workplaces. The Review will consider the workplace culture of Commonwealth parliamentary workplaces and will deliver its findings in November 2021. The Commission is welcoming contributions from people who work or have previously worked in Commonwealth parliamentary workplaces as well as students, interns and volunteers. It is also seeking input for people who are experts in this space. The Review will also consider the risk factors of bullying, sexual harassment and sexual assault for workers in Commonwealth parliamentary workplaces and awareness of relevant Parliament of Australia policies.

Deliveroo Rider Classified as an Employee in Unfair Dismissal Case

The Fair Work Commission (FWC) has found that a Deliveroo rider was an employee of Deliveroo and therefore protected from unfair dismissal under the Fair Work Act 2009 (Cth). The rider, Mr Franco, had worked for Deliveroo for four years in Sydney when he was terminated on 30 April 2020 for allegedly failing to deliver orders in a reasonable time. Mr Franco filed an unfair dismissal application against Deliveroo alleging the dismissal was harsh, unjust or unreasonable and seeking reinstatement as a rider. Deliveroo objected to the application on the basis that he was an independent contractor, not an employee, primarily on the basis that Mr Franco was permitted to “multi-app” (i.e. work for multiple delivery companies at the same time), and that they had no control over when, where or how long Mr Franco worked. The commission found the use of a uniform and a system that organised shifts and measured performance amounted to an employer-employee relationship. The level of control exercised by Deliveroo also supported an employment relationship, rather than independent contracting. While the multi-apping pointed away from employment, it could not represent a factor that prevented such a relationship in the modern, rapidly changing workforce that has been significantly altered by COVID-19. On the point of unfair dismissal, it was decided that there was no valid reason for dismissal because Deliveroo had failed to clearly communicate with Mr Franco the delivery time standards with which he was required to comply. The Commissioner found the decision to notify Mr Franco of his dismissal via email and its manifest failure to afford him with procedure fairness was unjust, unreasonable and unnecessarily harsh. The Commissioner ordered Mr Franco be reinstated, that the continuity of his service be recognised and that Deliveroo pay Mr Franco the remuneration he lost because of the dismissal. The decision is likely to have wide-reaching consequences for platform operates and workers in the gig economy in Australia.

Study Finds Paid Parental Leave Largely Taken by Women

A new study at the University of Sydney has found that almost all paid parental leave under the role of primary carer has been taken by women over the past ten years. The paper warns that the lack of improvement on the ten-year-old paid parental leave scheme has only ingrained gender inequality, in the workplace and at home. Over the last decade, according to data from the Australian Bureau of Statistics, 95% of primary carer paid parental leave was taken by mothers and 95% of secondary carer leave was taken by fathers, despite most primary and secondary paid parental leave schemes being accessible to both women and men. The sharing of primary care over a longer period will lead to more gender equitable outcomes.

Dismissal Unfair: No Evidence to Support Different Conclusion 12 Months Later
Brelin v Sydney Trains [2021] FWCFC 1314

The applicant was engaged as a plant mechanic with the respondent since 2015. In August 2019, the applicant collided with a power pole while reversing a work vehicle, causing approximately $35 000 in damage and injury to the apprentice passenger in the vehicle. The applicant stated in an interview that he believed he was travelling at about 10km/hour at the time of the accident. The initial investigation in September 2019 concluded that the cause of the accident was human error and poor visibility, and the applicant was required to take additional driver training. In November 2019, the passenger informed his manager that the applicant had been ‘egged on’ by a colleague in another vehicle. The employer re-opened the investigation in April 2020, in the course of which they formed the view that the vehicle had been travelling between 30-40km/hour and that the applicant had provided misleading information. The applicant was dismissed by the employer for failing to take reasonable care for the health and safety of himself and his passenger, and for providing misleading information. The Commission found that there was little evidence to sustain the finding that he had provided misleading information. There was no witness to provide evidence of speed. Specific conclusions of the second investigation were not put to the applicant. While the applicant’s lack of driving diligence was a valid reason for dismissal, it was unfair of the respondent to revisit the accident and arrive at a different outcome 12 months later. Therefore, the dismissal was unfair. No compensation was provided for loss of earnings due to the applicant’s conduct, but an order of reinstatement with continuity of service was made.

Lawyer’s Discrimination Claim Thrown Out After Failing to Submit to a Psychiatric Assessment

A full Federal Court has upheld a permanent stay on a lawyer’s claim for damages against his former firm because of his refusal to submit to an independent psychiatric examination. The appellant had claimed he was subjected to bullying, sexual discrimination and sexual harassment while employed, because of his sexual preference. The firm had requested an independent assessment after becoming aware of a psychiatrist’s diagnosis of paranoia and delusional disorder on the part of the lawyer. However, the lawyer contended that the firm had ‘improperly obtained’ that information and the court had no power in dealing with a complainant under the Australian Human Rights Commission Act 1986 to order a psychiatric examination. The lawyer partly relied on s 24(1C) of the Federal Court Act 1976 to argue that leave was not required from the earlier interlocutory judgement because it affected his liberty. The full court found that the s 24(1C) exception did not apply because he was not ordered to undergo a psychiatric assessment; rather, if he did not agree to it, he could not continue with proceedings. The full court stated the case was a ‘stark illustration of the difficulties that people with serious mental health problems face in the litigation system’.

States Commit to Regulation of Psychosocial Risks

Employers will have a positive obligation to eliminate psychosocial hazards and injuries under new laws to be introduced following a meeting between state and federal work health safety ministers this month. Industrial Relations Minister Michaelia Cash said the ministers also unanimously agreed to introduce gross negligence as a fault element in the Category 1 offence in the model WHS laws. Category 1 offences apply when a worked is killed at work or suffers serious injury or illness or is exposed to such risks. Employers will be required to take preventative action on mental health issues attributable to work, including sexual harassment in the workplace.

The reforms will provide clearer guidance to employers on how to fulfill their obligations to protect workers from mental injury. They will also place psychological hazards on the same footing as physical hazards. This comes ahead of a meeting of state, territory and Commonwealth WHS Ministers this month, where the Ministers are expected to vote on similar regulations for the Model Work Health and Safety legislation.

Toxic Workplace Culture at Victoria Prison

A coroner has found that toxic, gossip and innuendo-fuelled workplace culture dominated a Melbourne prison prior to a guard taking his own life, but there was not enough evidence to conclude that Bill Maxwell was bullied or harassed at work. The inquest heard the Mr Maxwell was ostracised by other staff after he provided statements alleging a fellow guard had kicked a prisoner’s head while he was handcuffed and restrained. Ms Hawkins concluded there was a strong culture against ‘dobbing in’ fellow officers, and a belief that if you did so there would be consequences. She accepted that this could create a significant health and safety risk. Ms Hawkins found a number of stressors could have contributed to Mr Maxwell taking his own life. She did not make any recommendations and acknowledged the substantial changes made by Corrections Victoria following his death. This included a cultural reform strategy, a staff support program, a speak up guideline and presentations about workplace bullying.