What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 17 – 23 October 2016

EOC-Sexual Harassment Complaints Doubled in the last 2 Years
The WA Equal Opportunity Commission has reported that the number of sexual harassment complaints lodged has almost doubled in the past two years. Last year the EOC received 54 complaints, 45 of which were lodged by women. The majority of these cases happened in the workplace, and occurred in the private sector.

The EOC Annual report provided a range of examples of complaints made to the EOC in the 2015-2016 period. In one case a woman alleged that her supervisor had sexually harassed her over an extended period of time. The EOC stated, “the supervisor had allegedly made frequent lewd and sexually suggestive comments and on one occasion had deliberately opened his trousers to expose his penis. The woman had on several occasions objected to this unwelcome sexual conduct, and on each occasion her hours were cut, or she was given random or unacceptable shifts.” This complaint was resolved in conciliation with the supervisor and club providing a written apology and financial compensation totalling $31,000. The Supervisor’s employment was also terminated.

Seven Network Sued for Sexual Harassment allegations
Amy Tauber is suing Seven Network (Operations) Ltd and former boss Graham Archer over claims her dismissal was triggered by a complaint she made against Today Tonight journalist Rodney Lohse. This claim has arisen after mediation through the Fair Work Commission failed.

Ms Tauber alleges that Mr Lohse engaged in sexual harassment, stating that Mr Lohse “made repeated unwanted comments” that were offensive and humiliating. It is alleged that these comments included a claim “that one in three women are lesbians, therefore (Amy) must be a lesbian as she is a triplet.” Ms Tauber is seeking a year’s salary for her remaining contract, undisclosed damages and compensation for loss of earnings, other penalties, interest, costs as well as a finding that she was wrongfully dismissed. The Seven Network, and Mr Archer, Seven’s news and public affairs director, have yet to file a defence.

Number 1 Complaint to AHRC is Related to Disability Discrimination
The Australian Human Rights Commission has confirmed that the majority of complaints to the commission relate to disability discrimination. AHRC president Gillian Triggs stated “the most recent percentages for complaints about discrimination in employment for people with disability is 35 per cent.”

Australia Post CEO Criticised for Ageist Comments about Staff
Australian Post Chief Executive Ahmed Fahour has been criticised for comments that he made during a Senate estimates hearing. Mr Fahour told the hearing: “I think we’ve got an unusual situation where 45 per cent of our employees are above the age of 50 and they are, some of those groups of people, are thinking less about new skills, new training and they are thinking more around “I want to retire one day and keep it as simple as possible until that point.” Age Discrimination Commission Susan Ryan expressed alarm in relation to the comments made by Mr Fahour. Ms Ryan stated that data indicates that “most people 50 and above are very keen to ensure their skills are up to date because they are quite aware there is a lot of age discrimination and if they let themselves get out of date that’s when they risk losing their jobs.” Further, Ms Ryan stated that older people who lose their jobs find it difficult to obtain another job, “it is disappointing that an important organisation and a huge organisation like Australia Post seems to be perpetuating those stereotypes.”

Sexual Harassment of Airline Staff by a Crew member Valid Grounds for Dismissal
The FWC has ruled that an airline supervisor who sexually harassed a number of coworkers was not unfairly dismissed. The supervisor had worked for the airline since January 2011 and served as a cabin crew supervisor since June 2014. The supervisor’s employment was terminated in February 2016 after an investigation into allegations that he had sexually harassed a number of other cabin crew workers. The investigation found that the following allegations were substantiated: the supervisor showed sexually explicit images of a crew member in intimate positions to other fellow crew members while in flight and on an overnight, the supervisor made inappropriate comments of a sexual nature to or within hearing of fellow cabin crew members, and the supervisor made unwanted sexual advances to fellow cabin crew members. Thirteen such events allegedly occurred, which led to the dismissal of the supervisor. The FWC considered that on the totality of the evidence, the alleged conduct did occur and it was serious misconduct. The Respondent had a valid reason to dismiss the Applicant. The FWC held this dismissal was not harsh, unjust or unreasonable.

Facebook Post Final Straw for Employee That lead to his Dismissal
In the case of Remmert v Broken Hill Operations [2016] FWC 6036, Clive Remmert applied to the FWC for an unfair dismissal remedy. Mr Remmert was dismissed from his employment with BHO on 22 April 2016, after he made comments that related to another employee, on a Facebook post.

In June 2015, Mr Remmert was disciplined in relation to some inappropriate conduct towards another employee and related matters. He was issued with a “final warning”, which also involved him undergoing mediation and being moved to the day shift for a period. This final warning was issued as a result of complaints relating to Mr Remmert’s “bullying and harassing behaviour including; swearing at people, rude comments, unpleasant to be around, creating a “toxic atmosphere” and belittling other employees.” In January 2016, Mr Remmert was moved from the day work back to undertake a shift roster.

Facebook Post
On 1 April 2016 whilst at home, Mr Remmert commented on a Facebook post involving a photo depicting a BHO employee (TP) wearing a cap with an exceptionally large peak, with the comment “Guess who I am with (TP)”. Another BHO employee created the original Facebook post/photo. Mr Remmert made two comments on this post. The first comment was: “I’ve seen fuckwits with bigger peaks on their hats.” The second comment was: “Next you’ll be running the denim pants with reflective tape.”

It is alleged by BHO that these posts were directed at another BHO employee who regularly wore a cap with a larger than normal peak in the workplace. A group of employees at BHO had engaged in bullying conduct directed towards this employee (‘Relief Maintenance Supervisor’), over a period of time. This behaviour included the Relief Maintenance Supervisor having “his tools disappear from the workplace and then appear in his locker or elsewhere; the lock for his locker covered in superglue; … and offensive graffiti aimed at him (involving the depiction of a hat with a large peak in the context of an explicit sexual reference) drawn on the inside of the toilet door within the maintenance workshop facilities.” Mr Remmert was not connected with these events.

On 2 April 2016, the Relief Maintenance Supervisor notified BHO of the Facebook Post and made a formal complaint. BHO commenced an investigation into the Facebook posts on 4 April 2016. A number of employees were identified as having commented on, or liked, the post and some were interviewed as a result. Mr Remmert was notified on 8 April 2016 that he was being stood down with pay pending an investigation into a formal complaint. Mr Remmert was advised of his dismissal on 22 April 2016. Disciplinary action was taken against some of the other BHO employees who posted on Facebook. This included the dismissal of two employees who were more directly involved with the Facebook incident and potentially other matters associated with the Relief Maintenance Supervisor.

The FWC considered that Mr Remmert’s conduct constituted a valid reason for dismissal. The FWC stated that in these circumstances there was relevant and sufficient connection between the out of working hours conduct and the employment relationship. In considering Mr Remmert’s first comment, the FWC found that this post was “either knowingly directed at the Relief Maintenance Supervisor, or at best, Mr Remmert was aware that others would take the comment to be such a reference.” At the time the comment was made, Mr Remmert was under notice that he should not be making comments that could cause distress to another employee. Mr Remmert’s conduct in commenting upon this post directly contributed to such a course of action. As such the FWC considered that on balance, there was a valid reason for dismissing Mr Remmert.

Although the FWC considered that a valid reason existed for dismissing Mr Remmert, the FWC considered that the dismissal was harsh and unreasonable. This conclusion was reached upon finding significant procedural unfairness in the decision making process. The FWC ordered the payment of $28,471 compensation to Mr Remmert.