What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 20 – 26 February 2017

Dean of ANU Medical School Launches Campaign to Address Bullying
Professor Imogen Mitchell, the Dean of ANU’s medical school has launched a campaign to address bullying and harassment in the medical profession. A 2015 study reported in the Medical Journal of Australia found that 81% of medical students had witnessed humiliation during adult clinical rotations and 74% of students had experienced humiliation.

Uber Investigation into Sexual Harassment Claim
Uber has announced an investigation into allegations of sexual harassment and discrimination. Former employee, Susan Fowler alleged that her manager sexually propositioned her over the internal chat system on her first day of work. Further, Ms Fowler alleges that she was dismissed after she made a complaint to human resources. Uber’s Chief Executive Travis Kalanick has announced an “urgent investigation” of the matter. Mr Kalanick stated that “there can be absolutely no place for this kind of behaviour at Uber.”

Victorian Government Unconscious Bias Program
The Victorian Government is trialing a new program to reduce workplace discrimination. The program, Recruit Smarter, aims to address unconscious bias by de-identifying names, genders, ages and locations of job applicants. The program will be trialed by employers within the public and private sectors over the next 18 months.

AFP Had 95 Complaints Lodged in a 3 month Period Regarding Workplace Harm
The Australian Federal Police have confirmed that 95 complaints have been lodged with the Safe Place unit over a three-month period. The Safe Place unit was established following the recommendations of the Broderick Report to provide confidential advice, support, advocacy for victims/targets of “workplace harm.” The complaints were lodged between the release of the Broderick Report on 22 August 2016 and 3 November 2016. Twenty-nine of these complaints involved AFP senior members. It has not been disclosed whether these complaints have been finalized or whether or not any complaints have resulted in adverse findings against AFP officers. AFP Commissioner, Andrew Colvin will provide some further information on these issues at the next Senate estimates hearings.

Termination of Employee for Aggressive Behaviours Was Valid

The Full Board of the Fair Work Commission has refused permission to appeal to Matthew Hughes in relation to the decision to dismiss his application for an unfair dismissal remedy (in the case of Hughes v Momentum Wealth P/L t/a Momentum Wealth [2017] FWCFB 759)

Matthew Hughes applied for an unfair dismissal remedy in relation to the termination of his employment by Momentum Wealth. Mr Hughes was dismissed following an investigation into his behaviour at a work social event held on 1 July 2016. On 1 July 2016, Mr Hughes was involved in an incident where he pushed a patron of the bar onto the floor and then stood over him “with a clenched fist and his arm raised as if he was about to punch the patron.” Another staff member, Mr Cliffe, intervened to restrain Mr Hughes. Mr Hughes responded, telling Mr Cliffe to “get you’re f***ing hands off me.” Mr Hughes then verbally threatened Mr Cliffe, telling him never to touch him again. Mr Hughes was asked to leave the function by the Managing Director at lest three times and repeatedly refused to do so before finally agreeing to leave.

On Sunday, 3 July 2016 Mr Hughes’ was advised by text message that he was to be stood down pending an investigation into the events of Friday, 1 July 2016. Mr Hughes however, was unaware of this text message and attended for work as usual on the morning of Monday, 4 July 2016. Shortly after arriving at work Mr Hughes came to see Mr Di Camillo and asked him what was going on and why was he telling people he wouldn’t be in. Mr Di Camillo told Mr Hughes that he had been stood down because of the incident at the work function on the Friday. Mr Hughes responded in an angry and aggressive manner Mr Di Camillo said words to the effect to Mr Hughes of “mate take it easy, you’ve been stood down for your aggressive behaviour and now you’re acting aggressively towards me.” Mr Di Camillo told Mr Hughes to leave the premises, but he ignored this direction.

At first instance, the FWC considered that there were several valid reasons for dismissal including: the conduct of Mr Hughes at the social club function on Friday, 1 July 2016, Mr Hughes’ conduct in standing over the patron who was on the ground in an unnecessarily aggressive manner, Mr Hughes threatening behaviour towards another employee of Momentum and Mr Hughes abuse of the Managing Director and initial refusals to leave when asked. Further, the FWC considered that Mr Hughes aggressive behaviour towards his manager Mr Di Camillo on Monday, 4 July 2016, his failure to leave the premises when his manager told him to do so and his rudely hanging up on Ms Wakeman, the General Manager, during their phone conversation were valid reasons for his dismissal. The FWC considered that the dismissal of Mr Hughes was not harsh, unjust or unreasonable.

Mr Hughes appealed on several grounds including that the Commissioner erred in finding that his behaviour at the work function was sufficiently connected to his employment. The FWCFB held that these matters raised by Mr Hughes did not demonstrate that it would be in the public interest to grant permission to appeal. Permission to appeal was refused.

Court Didn’t Make a Finding as to Whether Gambling was a Disability
Kathleen Hinder claimed that she was discriminated against at work on the basis of her disability. Ms Hinder argued that her employer, the Salvation Army, discriminated against her on the basis of her disability, a gambling addiction.

Ms Hinder was employed as a shop assistant in 2004, and promoted to a Store Supervisor in 2005. In mid January 2011, Mr Jon Belmonte and Mrs Leah Belmonte assumed responsibility for the store where Ms Hinder was working. Ms Hinder provided Mr Belmonte a copy of document that she had written explaining her struggle with gambling. This document described Ms Hinder’s Community Service Order, and her progress in recovering from her gambling addiction with the assistance of Gamblers Anonymous.

After assuming responsibility for the store, Ms Belmonte organised a risk management review to be conducted by Ian Powell, the Organisational Risk Director for the Salvation Army. On 14 February 2011, Mr Powell presented his report. The report set out a number of areas of “very high to extreme risk exposure” including allegations of staff theft. At the time of preparing the report, Mr Powell was unaware of any particular allegations of theft made against Ms Hinder and her history of gambling.

On 16 February 2011 Ms HInder was suspended on full pay from the position of store supervisor. Ms Hinder was advised that the reason for her suspension was “customer complaints, failure to follow directions to vacuum and clean the shop daily and smoking in areas where smoking was not permitted, despite direction not to do so.” Upon receiving the letter of suspension Ms Hinder resigned and subsequently made an unfair dismissal application (in the case of Hinder v The Salvation Army (NSW) Property Trust (No 3) [2017] NSWCATAD 16)

The Tribunal dismissed Ms Hinder’s application, finding that Ms Hinder had not been discriminated against on the basis of disability. In reaching this finding the Tribunal noted that Ms Hinder had not been treated less favourably than a hypothetical comparator. There was no evidence before the tribunal that Ms Hinder’s history of gambling played any role in the disciplinary process. Further, the Tribunal noted that Ms Hinder made a choice to resign and was not required to do so.

In relation to the question of whether Persistent Depressive Disorder, problem gambling or a gambling addiction constituted a ‘disability’ for the purposes of the Anti-Discrimination Act 1977, the Tribunal made two key findings. The first finding was that that there was no evidence that Ms Hinder gambled whilst employed with the Salvation Army, nor that she had a gambling problem at this time. Rather, the Tribunal considered that Ms Hinder had “recognized that she had a problem and resolved and committed to managing it.” After making this finding, the Tribunal stated that in this case, it was unnecessary to determine whether Persistent Depressive Disorder, problem gambling or a gambling addiction constituted a ‘disability’. This was left open for determination at a future time given the changing state of scientific knowledge.

Can’t Apply for Stop Bullying Order if No Longer Employed
The Applicant applied for an order to stop bullying on 24 February 2016, alleging that he was subject to bulling behaviour by 14 employees in his workplace. On 12 January 2017, the Applicant advised that his employment had been terminated. On 5 January 2017, the Applicant filed an application for an unfair dismissal remedy. The FWC dismissed the application for an order to stop bullying, as there is currently no risk of the Applicant being bullied at work.