What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 20 May 2019 – 26 May 2019

Heartless Dismissal While Employee in Hospital With Cancer Considered Unfair
The Fair Work Commission has found in favour of a Sydney chef who was dismissed following three days of sick leave. The Chef, Chanintorn Siri, worked at Urban Orchard Food for over two years before his dismissal. Following intense stomach pain, which was later found to be pancreatic cancer, Urban Orchard granted Chanintorn Siri three days sick leave. On the third day, while admitted at Sydney’s Concord Hospital, Siri was summarily dismissed via telephone. According to Urban Orchard Food’s owner, Gabrielle Levette, Siri had been dismissed due to a history of underperformance, poor behaviour and issues with his time keeping for which he had received verbal warnings. This week, however, the Fair Work Commission found that the dismissal was unfair, that the real reason for the dismissal was because of the sick leave the chef took and the likelihood of him taking more sick leave. Commissioner Cambridge said that in dismissing Mr Siri over the telephone, Urban Orchard Food was ‘plainly unjust, manifestly unreasonable, unnecessarily harsh’. The former chef is set to receive $18,200 in compensation.

Public Servant Loses Appeal to Return to Work for Suspension for Threatening and Bullying Behaviour
A Queensland man has lost an appeal to return to work after being suspended for his threatening and bullying behaviour. Simon Dorante-Day – the man who infamously claims to be the love child of Prince Charles and the Duchess of Cornwall – was suspended in June 2018 by the Public Service Commission following an inquiry into his behaviour. Mr Dorante-Day’s boss said that he received threats from Dorante-Day during a telephone conversation. The boss explained that he felt ‘subjected to bullying, disrespected and verbally and physically threatened in the workplace by Dorante-Day’. A month after his suspension, Dorante-Day applied to the Supreme Court of Queensland to have the punitive measures quashed and return him to work. He pled that issues at work arose because of the ongoing royal paternity situation. Dorante-Day said he often stayed up until 4 am in the morning on the phone to Buckingham in an attempt to confirm his lineage. This, he said, contributed to conflicts at work and overall reduced performance. In a judgment handed down last week, Justice Debra Mullins rejected Dorante-Day’s application to have the suspension reversed. Her Honour found that ‘none of the grounds for review relied upon by [Mr Dorante-Day] were been established’.

What Does Folau’s Decision say About Employer’s Reach into Individual’s Social Media Posts?
In light of Israel Folau’s recent sacking, legal commentators have examined the broader impacts the decision might have on private individuals. However, as Swaab partner Michael Byrnes discussed, the outcome of Folau’s recent code of conduct hearing is unlikely to have intrusive consequences for the everyday employee. This is because, as Byrnes states, private individuals don’t necessarily carry the burden of their employer’s reputational status. Unlike Folau – a rugby star embroiled in a media frenzy – private persons are generally not expected to represent their employer and prevent reputational harm. As Byrnes stated, persons outside of the public eye can express views online without fear of reprisal, where they can place distance between their personal views and those of their employer. For example, employees can ensure ‘they’re on an account that makes no reference to their employer’. This, Byrnes said, ‘creates separation [between the employee and their employer in the situation that] there is something contentious’. In this sense, employees can maintain their right to express their personal views online when done in a private capacity.

Rush Receives $2.85 million Defamation Payout
The Federal Court of Australia has awarded Geoffrey Rush the single largest defamation payout in Australian history. The defamation dispute arose after a newspaper published comments related to a former co-star who privately reported to the Sydney Theatre Company allegations of inappropriate behaviour conducted by Mr Rush. Justice Wigney of the Federal Court, previously awarded damages in the sum of $850,000 and has now awarded an additional $2 million for lost earnings.

Sackville QC Named as Chair of Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
Ronald Sackville QC has been named as the Chair of the upcoming Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The Commission is set to investigate discrimination against people living with a disability – both in an employment context as well as more broadly.