What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 18 March 2024 – 24 March 2024

Landmark AHRC Project to Improve Prevention and Response Strategies for Sexual Harassment at Work

The Speaking from Experience Project invites people, especially those from minority groups, who have experienced workplace sexual harassment to help Sex Discrimination Commissioner Dr Anna Cody and the team to improve prevention and response strategies in Australian workplaces.

“Speaking from Experience is a pivotal step forward in our collective efforts to prevent workplace sexual harassment and promote safer, more inclusive and diverse workplaces,” Dr Cody said. “By listening to people who have been sexually harassed at work, we can drive meaningful change and create workplaces where everyone feels respected, valued, and safe.”

In-person consultations in Perth with Dr Cody and victim-survivors of workplace sexual harassment will commence this week. People who wish to make a written or audio submission to the AHRC can go to the Commission’s website for more information.

Stereotypes, Discrimination, and Biases Against Women run Deep in the Construction Industry

The Building Commission NSW has released a critical report on the participation of women in the industry. The report, titled ‘Women In Construction’, delves into why women either leave the industry or are hesitant to join it.

The report finds that 46 per cent of men in the industry feel that women cannot sustain the ‘strength-intensive’ demands of the industry. Where one in two women reported experiencing sexual harassment, 71 per cent have faced some level of gender discrimination in the industry.

“A mere policy change will not bring about the development needed to build an inclusive industry. The report should act as a guide for the industry for attitude adjustment, and workplace behaviour changes and lead the way for the government and all stakeholders,” Vanessa Carmody-Smith, Executive Director Policy & Programs, Building Commission NSW, said.

Another noteworthy finding of the report was that the roles for women in the construction industry are not adequately advertised and that there was a lack of exposure to the industry for young women.

Sexual Harassment Report Form Altered to “Hurt Feelings Report”

It is alleged a “hurt feelings report” form was given to a staff member of the Bunbury Regional Prison in response to them looking for help after claiming to have experienced sexual harassment in the workplace.

The sheet — sent in a 2022 email and seen by the South Western Times — follows the standard structure of a complaints form, but each of the prompts was replaced with phrases intended to demean the complainant. Where it asks for the name, sex and age of the complainant, it requests the “whiner’s” details. The box intended for the accused person’s name says “name of the person who hurt your pansy ass feelings,” and in the section for more details, it says to “tell us in your own sissy words how your feelings were hurt, as if anyone cared”.

The form was sent to an employee by a senior officer—the very person who was designated to handle their complaints. The former employee who received the form said the response was unexpected and left them feeling powerless.

“(The senior officer) understood the nature of the complaint, I confided in (them) explicitly with names, dates and times and also spoke to (them) about their systemic sexual harassment,” they said. “I also realised that potentially there was no pathway of complaints, and that’s why it’s systemic there because you don’t, or you’re not to be seen to be complaining or to report those kinds of behaviours. “You begin to think that there is nowhere to go, absolutely nowhere to go.”

A spokesperson from the Department of Justice said it did not have a record of a complaint about the form being sent. “The Department of Justice has no record of a complaint of the type of misconduct alleged in your inquiry,” they said. “More generally, the Department takes seriously allegations of staff misconduct, investigating complaints internally and cooperating with the processes of external agencies. “Any formal complaint received by the Department is assessed by its People, Culture and Standards division and further action taken if substantiated.”

The Department of Justice and some Bunbury prison staff are the subject of a lawsuit by former employee Bronwyn Hendry, who alleges sexual harassment at the prison, as well as sexual and disability discrimination.

Importance of Storing Evidence in Unfair Dismissal Investigations

The Fair Work Commission (FWC) recently dealt with a case involving an employee who claimed that he was unfairly dismissed for “sleeping.” However, the employer failed to provide video footage and presented contradicting witnesses from other staff.

The worker was a Production Supervisor with Piacentini & Son who alleged that he was found asleep at work on August 7 and 8, 2023, and was uncontactable by two-way radio. The worker denied all the allegations and contended that his dismissal was unfair.

He requested that dashcam footage from his vehicle be retrieved to exonerate him twice but when the footage was finally checked, it only went back to August 14, 2023.

The FWC said the dismissal was harsh, unjust, and unreasonable. It found that the employer substantiated the allegations before the employee even received the detail of the allegations in writing, let alone before he had the opportunity to respond to them”. “[Its] failure to interview [other staff], and the failure to pull the dashcam footage from 7 August 2023 in time despite receiving [the] incident report on 24 August 2023, affected the outcome of the investigation.”
“The issues with the way the investigation was conducted are so significant that even if there was a valid reason for the employee’s dismissal, the employee [would still be found] unfairly dismissed,” it added.

It then directed the parties to have another hearing set for remedies.

Unfairly Dismissed for not Wearing Company Uniform

A casual supermarket trolley collector for MSN Enterprise Group Pty Ltd experienced health issues due to his required uniform (sweat, dizzy, dehydrated). In the cooler months, the worker reportedly wore this item “without difficulty.” As the weather warmed, he began experiencing health issues because of the uniform, particularly when he was working in less well-ventilated underground car parks such as the Bondi facility. He also had anxiety and autism and one of his symptoms of anxiety is poor temperature control and one of the sensory issues due to his autism was that the shirt made him feel hot and it was uncomfortable on his skin.

Despite raising his concerns with his managers and offering to pay for a more breathable uniform, his requests for accommodation were denied.

On January 7, 2024, the worker was approached by a manager who instructed him to wear the company-provided shirt. He refused, citing the negative impact on his health and left the site, stating, “I’m out, I’m done.” But he later contacted HR to discuss his employment status.

On January 8, 2024, during a call with the employer, he was informed that if he could not wear the required uniform, he could not perform the role. The employer also told him that he had been asked to “let him go.”

The FWC found that the workers words on January 7, 2024, should not have been understood as an unequivocal resignation but rather as an expression of frustration and unwillingness to work that particular shift due to the ongoing uniform issue. And that the employee had not resigned but was dismissed. The matter is ongoing.