What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 19 – 25 December 2016

Occupational Obesity Cases in Victoria
Lawyers in Victoria are being inundated with “occupational obesity” cases involving workplace injuries, illnesses and risks caused by overweight workers. While only a handful of employment cases involving obesity issues have ever made it to Australian courts, many cases are settled out of court. This year, these cases included:
• a healthcare worker sacked because he/she was too large to bend down to provide lifesaving care to patients on the ground. The worker refused to take part in health-based programs that would improve his/her condition and facilitate a gradual return to work;
• a travelling salesman who suffered sleep apnoea and uncontrolled blood pressure due to his severe obesity. The salesman agreed to undertake sleep therapy and a health plan to lose weight and was able to return to full duties six months later; and
• a truck driver weighing 190kg suffered spontaneous soft tissue and bony injuries as a result of weight. The truck driver was terminated as he/she refused to take part in a health program set up by his employer.

Dr Paul Sutton, the Victorian Trades Hall Council’s occupational health and safety lead organiser has said that employers have a duty to provide a healthy workplace and they needed to design jobs better rather than take action against workers. MR Sutton stated that by creating “sedentary jobs, with awful shift patterns, low pay and high stress,” employers exacerbate any underlying health issue a worker might have including weight problems.

Victoria is the only state in Australia that provides protection for employees with respect to obesity discrimination, under the category of physical attributes, unless the employee cannot do the inherent requirements of the job, due to their obesity.

Former Deloitte Accountant Discriminated by Employer Due to Having Tuberculosis
Paige Choi, a former Deloitte accountant who suffered from tuberculosis, has won a disability discrimination claim against her former employer. Ms Choi was away from work sporadically from 5 August 2012 to late November 2012. On 3 September 2012, Ms Choi advised Deloitte she had tuberculosis. On 23 November 2012, while Ms Choi was in hospital she received a phone call from Ms Bevan (from human resources). Ms Choi alleges the telephone conversation was the first indication she may be “eased out” from her employment. She claimed Ms Bevan suggested three options to her: taking unpaid leave, working part-time or resigning. The NSW Civil and Administrative Tribunal found the part-time option was never fleshed out in any way at any point and “realistically” Deloitte only presented Ms Choi with just two options – take unpaid leave or resign.

On 26 November 2012, Ms Choi telephoned Mr Lamont, a partner in the division in which she worked. The Tribunal found that during this conversation Mr Lamont suggested Ms Choi take the rest of the year off and return to work in the New Year and that she felt pressured to agree to that proposition on a “leave without pay” basis.

On 7 January 2013, Ms Choi returned to work. On her return to work, Ms Choi alleged that management made her feel unwelcome in various ways, including allocating her demeaning tasks, not inviting her to a particular training course, criticising her performance when before her illness there were no criticisms, repeatedly telling her to prepare her CV, conducting an unfair performance management process, and subjecting her to an excessive numbers of meetings with human resources and to special meetings with Mr Wee and Ms Dreyer (senior human resources personnel). The Tribunal was satisfied that the performance management review, the manner in which it was conducted and the meetings associated with it were engineered by management to put pressure on Ms Choi to resign.

The Tribunal found that Deloitte pressured Ms Choi to take unpaid leave and unfairly performance managed her because she had tuberculosis. The tribunal ordered the firm to pay her $14,304.69 to compensate for the unpaid leave she took because of her illness and $10,000 for “non-economic loss”. The firm was ordered to also pay her $36,000, being the difference between her usual salary and the workers compensation payment she received.

Former Bunnings Employee Suing Employer for Dismissal Once he Lodged a Bullying Claim
Bruce Johnson, a former Bunnings department manager has lodged unfair dismissal proceedings in the Federal Circuit Court. Mr Jonson is claiming that his employment was terminated after he lodged a complaint with the Fair Work Commission about workplace bullying.

Mr Johnson lodged a complaint of bullying against his manager after his workload dramatically increased to up to 60 hours per week. Mr Johnson alleges that his manager assigned urgent tasks to him near the conclusion of his shifts, meaning that he had to start work at 5.30am and leave as late as 9.30pm a few nights a week to get the extra work done – for no extra pay. Mr Johnson alleges that his manager swore at him and called his team members “idiots, f—wits and nuffies” in front of customers and other staff. Mr Johnson also claims that he had been directed to manage people out of their jobs after they were injured at work or because they were “too old” or too expensive, reasons that had nothing to do with their job performance. It is alleged that after Mr Johnson took the issue to the Fair Work Commission, Bunnings ended his employment.

Investigation into Systematic Bullying in ACT Corrective Services
An investigation is currently being undertaken into the prevalence of systematic and widespread workplace bullying in ACT Corrective Services. This investigation is considering a number of allegations that were raised in a November meeting between workers and senior figures in ACT Corrections. It is alleged that the division is “a toxic workplace run by fear and riven by high levels of absenteeism, workers’ compensation claims, staff turnover and unbearable workloads.” In particular, it has been alleged that complaints about the management of the division have been suppressed for years in an atmosphere of fear of reprisal and punitive measures against anyone speaking out. At the November meeting, one employee stated that “he was aware of [a] high risk of suicide and self-harm among current and former staff at ACT Corrections” as a result of the long-standing bullying. Staff have been advised of the process for this investigation and informed of the support that is available to them while the investigation is ongoing.

Employee Couldn’t Make Unfair Dismissal Claim Because she Resigned
Sally-Ann Sherman (in the case of Sherman v Sunrise Health Service Aboriginal Corporation [2016] FWC 8903), a Registered Nurse, made an application for an unfair dismissal remedy in respect of the termination of her employment by the Sunrise Health Service Aboriginal Corporation. Ms Sherman was suspended on full pay while an investigation was carried out into allegations that Ms Sherman had bullied her co-workers. The alleged behaviours included: verbally aggressive communication, repeated finger pointing at staff when addressing them in an aggressive tone, threats of physical violence, frequent use of inappropriate language, discriminating against Indigenous employees and repeatedly referencing “I’m sick of white c*** nurses.” The investigation concluded that several severe breaches of the Equal Employment and Opportunity Laws and the Sunrise Health Service Policy had been established. A meeting by telephone with Ms Sherman was arranged for 13 July 2016. The purpose of the meeting was to communicate the investigations findings and give Ms Sherman an opportunity to respond to them before Sunrise Health Service made a decision as to what should occur about the investigator’s recommendation. At this meeting, a union representative advised that Ms Sherman would resign. The FWC determined that Ms Sherman was not “dismissed” within the teaming of the term as at the time she “put forward her resignation, she plainly apprehended that the results of the investigation complaint may have serious consequences for her.” The application was dismissed.

Employee’s Resignation not Considered to be Constructive Dismissal
Jaime Taouk-Saade (in the case of Taouk-Saade v Drug and Alcohol Multicultural Education Centre [2016] FWC 8752) made an application for an unfair dismissal remedy against her former employer Drug and Alcohol Multicultural Education Centre (DAMEC). Ms Taouk-Saade submitted that her resignation on 13 May 2016 was a constructive dismissal because DAMEC failed to prevent a co-worker from bullying and harassing her. DAMEC had complaints from a co-worker about Ms Taouk-Saade and had had issued formal and informal warnings to Ms Taouk-Saade regarding her performance and conduct at work. Ms Taouk-Saade was requested to attend a meeting to discuss her performance. In response to this request, Ms Taouk-Saade resigned. The FWC was satisfied that DAMEC acted appropriately to manage the situation by investigating complaints about Ms Taouk-Saade. In respect of Ms Taouk-Saade’s claim that she was bullied, the Commission found that while there was conflict in the workplace between Ms Taouk-Saade and her co-worker, the Commission was not satisfied that the co-worker’s conduct amounted to bullying and harassment. The Commission found that there was no evidence of a constructive dismissal as Ms Taouk-Saade had a number of choices open to her, but decided to resign.