What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 18 December 2023 – 24 December 2023

Safe Work Australia Releases ‘Sexual and Gender-Based Harassment’ Web Page

Safe Work Australia released this week a “sexual and gender-based harassment” resource page. The web page contains an overview and includes information relating to WHS duties, such as how to manage risks. Further, it contains resources including:
• Preventing workplace sexual harassment – guidance for small business;
• Workplace sexual harassment – advice for workers;
• Model Code of Practice: Sexual and gender-based harassment;
• Model Code of Practice: Managing psychosocial hazards at work; and,
• Infographic: Workplace sexual harassment – Your WHS duties.

Fortescue Metals Group Avoids Prosecution Over Failing to Produce Sexual Harassment Documents

Fortescue Metals Group (FMG) has avoided prosecution for failing to produce documents in relation to dozens of sexual harassment allegations on its mine sites after it had agreed to spend $1.4 million on “strategies to address inappropriate workplace behaviours in the mining industry”. FMG entered into an “enforceable action” with WorkSafe, resulting in dropping 34 charges of “refusing or failing to comply with a requirement to provide documents”. The allegations related to three of FMG’s mine sites, including Christmas Creek, Solomon and Cloudbreak. The enforceable undertaking means that the matter is discontinued without an admission or finding of guilt. Acting WorkSafe Commissioner Sally North said that “Fortescue has committed to spend more than $1.4 million in the first Enforceable Undertaking entered into under the State’s Work Health and Safety legislation”. Ms North said that “this is a substantial investment in improving industry capability and I firmly believe that this agreement is in the best interests of workers across the mining sector.” Further, she said that “WorkSafe will monitor the progress of the undertaking by meeting with Fortescue on a quarterly basis, and further action will be taken if the undertaking is not delivered”.

Canberra Nurse Awarded Compensation Despite Employers Having “Well-Founded” Reason for Dismissal

A Canberra nurse has been awarded compensation in an unfair dismissal case, despite her employers having a “well-founded” reason for her termination. Carol Sandland sued Canberra Health Services after she was dismissed earlier this year. Ms Sandland had conceded that she sent emails which contained confidential patient information from her work email account to her personal home accounts due to a lack of time on shift. Ms Sandland said that the information she shared with the union was due to concerns that management was not acting on staff safety issues. Commissioner Sarah McKinnon found that Ms Sandland’s dismissal was “unreasonable”, despite it being for a “valid reason”. Commissioner McKinnon said that “considered in totality, the conduct was a sound, defensible and well-founded reason for dismissal.” Further, she said that “I find that dismissal was the likely outcome even if more time had been allowed for her to engage with the disciplinary process.” The Commissioner ordered that Canberra Health Services pay Ms Sandland approximately $5,400 within 28 days.

Male Nurse Suspended for Eight Months for Sexually Harassing Four Colleagues

A male nurse has been reprimanded and suspended from practising for eight months for sexually harassing four female colleagues. Stephen Harris had been referred to the Victorian Civil and Administrative Tribunal (“tribunal”) for alleged professional misconduct involving the sexual harassment of four female colleagues between 2015 and 2019. In July this year, the tribunal heard that Mr Harris “pushed boundaries” with other staff. This behaviour included “poking or tickling people under the arms while behind them, and in some instances, patting, slapping, or pinching their bottom.” Three colleagues had received text and Facebook messages from Mr Harris, which included images of love hearts and poems. Some messages mentioned missing seeing the individual when they were not at work and that they were beautiful. The tribunal found that the “conduct was uninvited, unwelcome, and made the colleagues feel uncomfortable, as well as guilty (two colleagues) and physically ill (one colleague).”

Lawyers for Bruce Lehrmann Argue Brittany Higgins Told “Complete Falsehoods”, Defamation Trial Ends

Bruce Lehrmann’s lawyers have argued that Ms Brittany Higgins told “complete falsehoods” and that her allegations were part of a “political hit job”. Justice Michael Lee reserved his decision on Friday after hearing more than four weeks of evidence and submissions. Steven Whybrow SC, counsel for Mr Lehrmann, told the Court that Ms Higgins had no hesitation about telling mistruths and obfuscating, such as “by deleting material from her phone, falsely alleging she was pressured into staying silent, telling a mistruth about her handling of the white dress she was wearing on the night of the alleged rape, and making a false claim about having a panic attack in a Parliament House bathroom.” Mr Whybrow said to the court that “Ms Higgins is not a person whose evidence can be relied on at all” and that “she has demonstrated herself to be repeatedly and in various forums over a significant period of time less than frank or honest in giving evidence.” Justice Lee will hand down his decision at a later date. Mr Lehrmann has consistently denied that he raped Ms Higgins and no findings have been made against him. His criminal trial was aborted last year due to juror misconduct and a planned retrial was abandoned due to concerns about Ms Higgins’ mental health.

State Government Releases Respect@Work 2023 Progress Report

The Western Australian government announced this week the release of the 2023 Respect@Work progress report. The state government has now said that it is satisfying over 75% of the recommendations from the Respect@Work report. It revealed that it had completed 14 out of 18 of the recommendations. According to the report, some of the recent measures to satisfy the recommendations include:
• Launching the National Plan to end Violence Against Women and Children-2022-2032 and allocating $1.3 billion through the Federal Budget 2022-23;
• Mandating consent education in the WA school curriculum for pre-primary to year 10 students (taking effect from 2024);
• Implementing the Anti-Discrimination and Human Rights Legislation (Respect at Work) Act 2022, which came into effect in December last year;
• The development of Western Australia’s first Sexual Violence Prevention and Response Strategy; and,
• The implementation of key strategies including Western Australia’s plan for Gender Equality and Path to Safety: Western Australia’s strategy to reduce family and domestic violence 2020-2030.
In relation to the remaining recommendations, the state government has said it is now drafting a new Equal Opportunity Act which is targeted to align with the Sex Discrimination Act 1984. Additionally, the Western Australian Training Accreditation Council is working with relevant parties on the review and trial of revised Standards for Registering Training Organisations. Thirdly, the Council of Attorney-Generals approved the Model Defamation Amendment Provisions in July 2020, which are proposed changes to Australia’s defamation laws. Lastly, the State government is working with the Commonwealth to identify working models for women’s centres to best meet Western Australia’s needs.

Heating and Cooling Company Celsius Ballarat Charged with Bullying

A heating and cooling company, Celsius Ballarat, has been charged with failing to provide and maintain a safe working environment under the Occupational Health and Safety Act. The apprentice involved was allegedly bullied between July 2022 and March 2023, with the charges relating to “the risk of mental injury posed by bullying and other inappropriate workplace behaviour.” WorkSafe Victoria has alleged that the company failed to provide and maintain systems for “identifying, reporting, investigating and stopping inappropriate workplace behaviour including workplace bullying.” Further, it is alleged that the company failed to “give employees necessary information, instruction and training relating to standards of behaviour in the workplace, as well as how employees could report inappropriate behaviour and how supervisors could respond to such allegations.” The matter is due to be heard at Ballarat Magistrates’ Court on 22 January 2024.