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

ATO Sued for Racial Discrimination

Iva Ilijevski, a former GST compliance officer, has commenced a suit against the Australian Tax Office for compensation. Ms Ilijevski alleges that, over a period of six years, her supervisor racially discriminated against her, on the basis of her Croatian background. It is alleged that the supervisor made a number of comments including stating “all you wogs would think about is money, money, money.” Other comments allegedly referred to Ms Ilijevski’s residence, including the question: “do you live in a wog double-storey house with arches and lions?” It is further alleged that the supervisor mocked Ms Ilijevski for speaking in Croatian to her parents (who do not speak English) when the family was arranging care for her dying father. In December 2012, Ms Ilijevski took sick leave. Ms Ilijevski was diagnosed with adjustment reaction with mixed emotional features, generalised anxiety disorder and obsessive-compulsive disorder and granted an invalid retirement. Ms Ilijevski is seeking compensation of $1,000,000 for the economic loss of being forced from her job, $250,000 for pain and suffering, and payment of her legal costs.

Employee Discriminated Against Based on Criminal Record

The Australian Human Rights Commission has investigated a complaint made by Mr AW, a former employee of technology company Data#3, of discrimination in employment on the basis of criminal record. Mr AW commenced employment with Data#3 on 6 January 2014. On 16 January 2014, Mr AW confirmed that he had a criminal conviction in New Zealand for selling MDMA. Mr AW’s employment was terminated on 17 January 2014.The Human Rights Commission found that the decision to terminate Mr AW’s employment constituted an exclusion made on the basis of criminal record.

The Human Rights Commission recommended that “Data#3 develop workplace policies in relation to prevention of discrimination in employment on the basis of criminal record; conduct training to assist staff to fairly assess a job applicant with a criminal record; pay Mr AW an amount in compensation for loss of earnings; and pay Mr AW $5,000 in compensation for hurt, humiliation and distress as a result of being discriminated against.” Data#3 has agreed to review its training and recruitment approaches, but has declined to pay compensation to Mr AW.

Stop Bullying Application Dismissed

Rebecka Edwards made an application to the FWC (Edwards v E & S Trading Co (Discounts) Pty Ltd [2016] FWC 8223) for an order to stop bullying, alleging that she had been bullied at work. Ms Edwards, a sales consultant, alleged that she had been bullied by: Mr Andrew Blake (the Store Manager), Mr Mike Bishop (the Operations Manager), and Mr Greg Lake (the General Manager). The allegations made by Ms Edwards involve claims related to particular circumstances or patterns of behaviour.

A significant portion of Ms Edwards’ application was concerned with an incident that occurred in November 2015 that was witnessed by Ms Edwards. Following this incident, Ms Edwards forwarded a complaint about the incident to the Store Manager. An independent investigation was carried out, which indicated that “there was no evidence of bullying at the store, but there were clear relationship issues between employees, particularly involving Ms Edwards and Ms Grobelny.” It was recommended that these employees undergo mediation. Following the mediation, the management team determined that there was a need “to send the strongest message possible that inappropriate conduct in the workplace was not acceptable.” Accordingly a decision was made to issue final warnings to both employees. Although the FWC noted that this matter could have been handled differently, the FWC considered that these circumstances did not amount to workplace bullying. In reaching this conclusion, the FWC considered the “processes involved, including the external investigation, the mediation process, and the detailed discussions involving senior management and the employees.”

In relation to the other circumstances or patterns of behaviour identified by Ms Edwards, the FWC concluded “the sharply contrasting evidence provided by [Ms Edwards], and by each of these different witnesses, makes it very difficult to conclude on any objective basis that these individuals have repeatedly behaved unreasonably towards Ms Edwards in a way that can be said to constitute workplace bullying.” Accordingly, the FWC dismissed the application.

Dismissal not Harsh for Stalking Behaviour

The Fair Work Commission has found that the dismissal of Abdul Soomro (Soomro v Murray’s Australia Pty Limited [2016] FWC 8211) was not harsh, unjust or unreasonable. It was alleged that Mr Soomro had engaged in conduct that breached Murrays’ Equal Opportunity, Discrimination, Harassment, Bullying and Workplace Violence Policy. This conduct included allegations of stalking and harassment including sending repeated unsolicited text messages to an individual. The FWC found that this conduct constituted a valid reason for dismissal.