What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 21 – 27 March 2016

New Gender Pay Gap Research

Researchers from Glassdoor Economic Research have released data which shows that Australian women earn on average a higher number of cents per dollar of male earnings than their US and UK counterparts. The survey considered 4044 salaries (77% male and 23% female). Within this sample there was a 17.3% unadjusted gap in the base pay between men and women in Australia. When controls for age, education and years of experience were considered, this gap shrunk to 12%. By applying additional controls for the specific industry, occupation, state, year, firm size, company and job title, the adjusted gender pay gap was 3.9%.

The report also divided the overall pay gap into an “explained” and “unexplained” criteria. The explained gap was due to differences between workers, while the unexplained gap could be due either to workplace discrimination, or unobserved worker characteristics. The report indicated that within Australia, the explained gap accounted for 61%, leaving 39% unexplained. Glassdoor chief economist Dr Andrew Chamberlain said that these figures indicate that the primary cause of the gender pay gap was not workplace discrimination, rather the wider “occupation and industry sorting of men and women into jobs that pay differently throughout the economy”. Other factors that influenced the pay gap included “university major, gender differences in pay negotiation and gender norms around care-giving and the resulting need for workplace flexibility.”

However, the figures released by the Glassdoor survey are based solely upon a self-selected sample of users, and accordingly the survey does not provide statistics of a representative sample of Australian workers. The Glassdoor survey found a general pay gap of 17.3%, an adjusted pay gap of 3.9% and indicated that most of the overall pay gap was due to industrial and occupational segregation. Although the overall trends identified by this survey are similar to previous analyses of the wage gap, the breakdown of contributing factors differ. Recently a factsheet released by the Workplace Gender Equality Agency, and a 2009 report from Natsen indicated a similar overall wage gap of 17%. However the Natsen report indicated that the primary cause of this gap was unobserved factors or simply being a woman (60%), not industrial segregation (25%). Similarly a 2010 study using data from the Household, Income and Labour Dynamics in Australia found that “women full-time managers earn about 27% less than their male counterparts and somewhere between 65 and 90 per cent of this pay gap cannot be explained by the characteristics of managers and is possibly due to discrimination.”

Case Says Fining Staff for Breaching Code of Conduct is Unlawful

Judge John O’Sullivan has imposed penalties totalling $118,800 against Lu’s Healthcare Pty Ltd and Director Ku Wang after workers were underpaid and also had money unlawfully deducted from their wages.

The Melbourne massage parlour had strict rules relating to the behaviour of staff and “serious punishments” for rule-breakers. The Court found that LU’s Healthcare arbitrarily deducted certain amounts from worker’s pay according to a Code of Conduct. This prescribed that: therapists showing a “lack of passion or hospitality” were fined $50; noise making, playing around, or lying on massage tables resulted in a $20 fine; being late to work resulted in fines of up to $100; and talking on the phone during a massage was grounds for dismissal.

While it is appropriate for an Employer to have a Code of Conduct that they require their staff to adhere to this case makes it clear that the Code must cover appropriate conduct and deducting money from an employee if they breach the Code of conduct is unlawful.

Law Firm Failed to follow Due Process in Dismissing an Employee

The Fair Work Commission has held that Alexis King was unfairly dismissed after she was absent from work in order to attend the District Court in relation to a domestic violence matter. Ms King was employed as an Associate at a law firm. She successfully completed her probationary period but there had been concerns raised about her timekeeping practices, her ability to meet deadlines and the need for her to increase her “Face Time.” Ms King was the victim of domestic violence perpetrated by her ex-partner. She was granted leave to attend the District Court on the 23 September 2015 in relation to this matter, on the basis that she would return to the office by 11am. Ms King was made aware that there would be a delay in the hearing of this matter at the District Court but did not inform the firm. She returned to the office at about 2:15 that day and was informed that afternoon that her employment would be terminated effective immediately.

The FWC found that Ms King’s dismissal was harsh – although she breached her obligations to her employer by not telling them that she would not be returning to the office by 11am on the 23rd September 2015, the consequences for her were harsh and disproportionate to the gravity of the misconduct.

In making this determination the FWC noted that there was a valid reason for dismissal in these circumstances; Ms King owed contractual obligations to the firm, was on notice about concerns that the partners had about her attendance in the office, and failed to notify anyone at the firm that she would not be returning to the office by 11am on the 23rd September 2015.

However, Ms King was not given notice of the reasons for dismissal or an opportunity to respond prior to the decision to dismiss. – s.387(b) of the Fair Work Act requires that-

“Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 25 in explicit terms26 and in plain and clear terms.27”.

The court quoted in Crozier v Palazzo Corporation Pty Ltd 28 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

This is a necessary part of following the process of natural justice before a negative finding is made against a person and the law firm, of all people, should have known this.

This is yet again another case where if the person managing the workplace issue had followed the principles of natural justice in the manner in which they conducted the complaint, the outcome for the employer (and the associated costs involved in defending an unfair dismissal claim) could have been avoided.

If you have staff who are responsible for managing workplace complaints then make sure they know what they are doing and enrol them in the next Grievance Officer course on Tuesday 24th and Wednesday 25th May 2016.