What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 18 March 2019 – 24 March 2019

Government Going to High Court Over Decision of Unfair Dismissal of Employee for Anonymous Tweets
In an appeal to the High Court of Australia, the Government has sought to uphold the dismissal of former public servant, Michaela Banerji. In 2013, the Department of Immigration and Border Protection terminated Ms Banerji’s employment after it discovered that she used an anonymous twitter account to criticise its policies. Ms Banerji’s tweets rebuked the Department for their “unfair” approach to immigration and “callous” treatment of asylum seekers. The Government’s appeal to the High Court came after the Administrative Appeals Tribunal (AAT) found that Ms Banerji’s dismissal was unlawful and that it impinged upon her constitutional right to free political communication. AAT Deputy President, Gary Humphries, found that the code of conduct for government officials did not extend to anonymous expressions of opinion. James Mattson, Practice Head at Bartier Perry, said that the High Court appeal could have major implications for employers across the country. Mattson said that a decision in favour of the Government could allow employers to dismiss employees on the basis of anonymous social media posts. Mattson was quick to criticise this outcome and warned that it could give employers an ‘Orwellian’ right “to police your thoughts and opinions outside of the office”.

The Benevolent Society Calls out Ageism
One of Australia’s oldest charity’s, The Benevolent Society, has called on employers to tackle the issue of workplace ageism. Marlene Krasovitsky, Campaign Director at The Benevolent Society, said that workplaces need to adopt strategies that accommodate for older demographics, and their transition into retirement. Krasovitsky said these strategies include job sharing, reduced working hours and flexible work arrangements. In commenting on the current state of play, Ms Krasovitsky said that it’s important to “start having conversations about ageism now”. Adding that, “at work is where it’s alive and kicking for people. What [the Benevolent Society] is trying to do is identify ageism – name it, call it out and give people an awareness of what it looks like”.

Dismissal Valid for Employee Who Posed for Facebook Photo While on Top of Operative Machinery Valid
A recent decision of the Fair Work Commission (NCM v Global Mining Services Pty Ltd) has upheld a Mining Company’s decision to dismiss an employee over their use of social media. Global Mining Services (GMS) dismissed the employee after they posed for a Facebook photo on top of an operative piece of machinery. GMS considered the employee’s actions to be in serious breach of its safety policies and rules, as well as capable for tarnishing the company’s reputation. After being confronted by GMS, the employee said he posed for the photo because he thought “it’d just look cool as hell”. At the crux of the Commission’s decision was the question of whether these events amounted to a “valid reason” for dismissal. The Commission found that the employee should have known that climbing on top of a piece of heavy machinery that was still running was in breach of the employer’s safety policies. The Commission therefore accepted the reasons as valid, in that the employee’s actions not only risked his safety, but also risked GMS’ reputation and business interests. The case demonstrates to employers that they are entitled to expect high standards of conduct from their employees. The Commission’s decision affirms that where an employee engages in inappropriate conduct, an employer is within its rights to treat that conduct seriously, even when the employee considers their actions to be trivial.

Chemist Warehouse Continues Strike Over Toxic Culture
Strikes at three major Chemist Warehouse outlets remain unresolved. The indefinite strikes began just under two weeks ago at the Somerton and Preston stores in Victoria and the Eagle Farm store in Queensland. Workers at the heart of these picket lines have demanded higher wages, greater job security and an end to “the toxic culture of bullying and harassment”. It is reported that sexual harassment at the pharmacy juggernaut often took place in the form of managers offering shifts in exchange for sexual favours. Since the industrial action began, numerous complaints of bullying and sexual harassment within Chemist Warehouse’s ranks have been reported to the Australian Human Rights Commission’s ‘National Inquiry into Sexual Harassment in Australian Workplaces’. Currently, there is little indication of resolution in sight.