What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 18 – 24 July 2016

Female Police Officer Alleges Sexual Harassment by Boys Club
A female police officer has alleged that she was sexually harassed while working with the South Australian police. The alleged harassment included male colleagues touching her, having male genitals drawn on the inside of her police cap, and sending her crude messages while she was working including one about a ‘gluten-free penis.’ SA Police has denied the claims, alleging that the woman was not harassed but having extramarital sex in a car with another officer who sent her the text messages. The Female officer denies having sex with another officer.

The matter was brought before the Industrial Court because the female officer asked for her name to be suppressed and the release of 2013-2015 reports from certain stations prior to trial. Deputy President Mark Calligeros, ordered the female officer be referred to as ‘A’, and ordered the release of some documentation.

The officer has filed action with the SA Employment Tribunal and has asked SA police be ordered to pay her weekly compensation and cover her medical expenses. The matter will go to trial next month.

ATO Employee’s Dismissal Upheld for Breaching Code of Conduct
Fahmid Rahman’s employment was terminated by the Australian Taxation Office for breach of the Australian Public Service Code of Conduct. The Code of Conduct states that employees must: behave honestly and with integrity; not provide false or misleading information; and behave at all times in a way that upholds the APS (Commonwealth Public Service) values and integrity. It was alleged that Mr Rahman breached the Code of Conduct by submitting false job applications at the ATO under the name “Muhammad Ahsanul Haque.”

In separate proceedings, Mr Rahman had filed an affidavit asserting that he applied for an APS6 role and also submitted a “dummy application” under a different name. After those proceedings Mr Rahman was issued with a Notice of Suspected Breach of the APS Code of Conduct. The ATO then authorized a Determining Officer to undertake an independent investigation into the alleged breach of the Code of Conduct. The Determination Report concluded that on the balance of probabilities, Mr Rahman had both completed and submitted, or was instrumental in the submission of five ‘false’ ATO job applications. Mr Rahman’s employment was subsequently terminated.

The FWC found that on the balance of probabilities it was likely that applicant was either responsible for filing or being instrumental in filing one of the ‘dummy applications’. Thus the FWC held there was a valid reason for dismissal, and the dismissal was not harsh, unjust or unreasonable.

Private School Teacher Bullied by Principal
Susan Purcell was employed as a teacher by Mercy Education Ltd and was also an OSH rep at the school. Ms Purcell made an application under the Fair Work Act for an order to stop bullying, alleging that she has been bullied at work by Ms Mary Farah, the Principal of St Aloysius College. Mrs Purcell became concerned about the bullying policy shortly after Ms Farah commenced as Principal and raised the issue of the need to update the bullying policy during two Occupational Health and Safety meetings over the period of a year, but no action was taken. Mrs Purcell’s concern was motivated by the resignation of the Deputy Principal who had been the person identified to receive complaints and in their absence no-one was identified to take on this role.

The FWC concluded that four instances of conduct alleged by Mrs Purcell, taken together, amounted to repeated unreasonable behaviour by Ms Farah towards Ms Purcell, the effect of which caused Ms Purcell distress and thereby created a risk to Ms Purcell’s mental health.

The four instances included:
(1) the allocation of the business manager, Mr Coates, to conduct Mrs Purcell’s Annual Review Meeting(“ARM”) in circumstances where Mrs Purcell was the only member of the teaching staff to have Mr Coates appointed to conduct her ARM;
(2) Mrs Farah communicating misleading information about who was sorting out Mrs Purcell’s long service leave payment;
(3) requiring Mrs Purcell to undertake an induction program for “new staff” on her return from 6 months long service leave (“LSL”) in circumstances where Mrs Purcell was the only staff member of the College returning from LSL, to have been required to participate in the program;
(4) the allocation of a mentor to Mrs Purcell in circumstances where no other staff member had a mentor at the time, and the mentor assigned to her was a person with less teaching experience and less knowledge of the College than Ms Purcell.

This case also provides insight as to what the FWC considers not to be unreasonable behaviour as there were other incidences Mrs Purcell alleged constituted bullying which the FWC did not agree with such as-

(1) The court said the way the employer conducted Mrs Purcells’ ARM was “poorly executed” but it did not make the behaviour unreasonable
(2) At a PD day Mrs Farah appeared to be aloof, dismissive and disinterested. The court accepted this was “poor form” and not good leadership but it was not unreasonable behaviour
(3) Mrs Purcell’s hours were decreased for justified reasons but the manner in which it was communicated to her and issues around whether it would affect her LSL entitlements were not clearly communicated -the court said, “it fell well short of best practice” but it was not unreasonable

The FWC noted that there was a degree of hostility between both sides and that “interpersonal relationship disputes are best resolved through the efforts of the parties and perhaps assisted by some form of facilitation or mediation.” The Commissioner said that he and would not make any court sanctioned orders at this stage but strongly suggested the parties engaged in a series of “mediated or facilitated meetings with the aim of repairing their relationship and engaging in a dialogue that will accommodate an ongoing professional working relationship and a safe working environment.” If they were not willing/able to do this, then they needed to let the court know.

This was an unusual judgment by the FWC and demonstrates the importance for parties involved in a dispute to attempt to resolve the issues through mediation.