What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 20 February 2023 – 26 February 2023

Victorian Worker Wins Sexual Harassment Appeal in Supreme Court of Victoria

A Victorian Supreme Court has found that a pay-out of $10,000 following a sexual harassment claim was “inadequate in the extreme.” Ms Leung was found to have been sexually harassed by her manager at Gumboots Australia six times between September 2019 and January 2020. Ms Leung said that the manager “slapped her on the buttocks” and stated that her “bottom has no meat”. VCAT senior member Susan Burdon-Smith found that Ms Leung’s manager was “vulgar and inappropriate” before awarding $10,000 in general damages. Ms Leung appealed to the Supreme Court of Victoria, where Justice McDonald stated that “the award of $10,000 for general damages borders on derisory.” Further, Justice McDonald ordered that the case return to VCAT, with an alternate senior member to determine the amount to be awarded.

Harassment at Australian Gold Mining Company Newcrest

The CEO of Australian mining company Newcrest stated this week that more workers are reporting instances of workplace harassment following the introduction of the Respect@Work program. Sherry Duhe indicated that the new program “was gaining traction by encouraging staff to report sexual harassment, discrimination and bullying.” The mining sector has faced intense scrutiny over the past two years following reports of sexual assault and harassment. Duhe explained that the introduction of the Respect@Work program has seen an increase in reports “not because things are happening,” but “because we are finding out about it and being able to deal with it.” Further, Ms Duhe expressed her enthusiasm for the program, stating that “too many bad things have been happening for too long,” and that she looked “forward to a day where we’re not having these conversations any longer, because these things are gone from the workforce.”

Fair Work Commission Published New Implementation Report

The new Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 includes a new provision on sexual harassment which prohibits sexual harassment in connection with work. The new amendments are set to commence on 6 March 2023. The provision makes it unlawful for an individual to sexually harass another individual where:

a) “The other person is a worker in a business or undertaking, seeking to become a worker in a particular business or undertaking, or conducting a business or undertaking”; and
b) “The harassment occurs in connection with the other person being a person of the relevant kind.”

An application can be made to the FWC to handle a dispute, including a stop sexual harassment order. Further, a new dispute resolution framework has been introduced, based on the framework for dealing with general protections dismissal disputes. The Commission may deal with the dispute through the following orders:

• “An order for the payment of compensation to an aggrieved person in relation to the dispute”; or
• “An order for payment of an amount to an aggrieved person in relation to the renumeration lost”; or
• “An order requiring a person to perform any reasonable act… to redress loss or damage suffered by an aggrieved person in relation to the dispute.”

Further, the new provision introduces a vicarious liability provision, meaning that an act that contravenes it “applies in relation to the principal… as if the principal had also done the act.” However, this section does not apply if the principal can prove that all reasonable steps were taken to prevent the employee from acting unlawfully.

Report: https://www.fwc.gov.au/documents/consultation/implementation-report-sexual-harassment-2023-02-23.pdf
Statement: https://www.fwc.gov.au/documents/consultation/presidents-statement-sexual-harassment-2023-02-23.pdf?utm_source=miragenews&utm_medium=miragenews&utm_campaign=news
Legislation: https://www.legislation.gov.au/Details/C2022A00079

FWC Orders Reinstatement of Unfairly Dismissed Worker

On 22 February 2023, the Industrial Relations Commission issued its decision in the case of Romeo v Griffith City Council [2023] NSWIRComm 1015. The question in this case was whether the worker was unfairly dismissed following his failure to inform the Griffith city council of his suspended Australian licence. This case saw the Commission order the reinstatement of the worker, finding that his dismissal was unfair and unreasonable. Further, the Commission stated that the city council failed to explain what the worker “stood to gain from the dishonesty.” While the Commission acknowledged that an employer “is entitled to honesty from an employee”, it found that “the objective seriousness of [his] dishonesty does not rise to the point of being at the higher end of the scale of misconduct.”