What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 22 – 28 August 2016

AFP Review-Significant Issues to be Addressed by New Unit
Elizabeth Broderick, the former sex discrimination commissioner has completed a six-month review of the Australian Federal Police. The review determined that instances of sexual harassment within the AFP were almost double the national average, with 46 % of women and 20 % of men reporting that they have been sexually harassed within the past five years. The findings of the review also indicated high levels of bullying with 62% of men and 66% of women reporting that they had been bullied in the past five years. Staff reported a lack of trust in the sexual harassment and bullying reporting system. This included fears of being ostracised or victimised or having the complaint negatively impact on their career. Members also said that complaints took too long to resolve, and that the system was not “victim focused.”

Female employees indicated that they faced a range of challenges including difficulties having to “fit in” with a male dominated culture, having to “prove themselves” and in some instances working in a sexualised environment.

Recommendations made included the establishment of a 15-member gender-balanced Cultural Reform Board, addressing leadership issues, and including offering more support to managers who performance-manage staff. Ms Broderick has made 24 recommendations, all of which AFP Commissioner Andrew Colvin said would be adopted.

Stop Bullying Application held to be Reasonable Management Action
Ms Xiaoli Cao (in the case of Cao [2016] FWC 5592) filed an application with the FWC for orders to stop bullying, claiming that she has been bullied at work by her Manager, Ms Rita Wilkinson. Ms Cao claimed that Ms Wilkinson has engaged in unreasonable behaviour towards her, including repeatedly exhibiting aggressive, humiliating, intimidating, belittling & retaliatory behaviour, repeated and persistent undue criticism including inaccurate accusations about the quality of her work and taking unreasonable management actions in an unreasonable manner.

The FWC held that the evidence did not support the numerous examples of allegations of unreasonable behaviour by Ms Wilkinson. The FWC noted that it appeared “Ms Cao wanted to ‘run her own race’, with little supervision or oversight, and when Ms Wilkinson made reasonable requests of her, she perceived this as questioning her professionalism.” The FWC concluded that the actions of Ms Wilkinson were reasonable management action carried out in a reasonable manner. The application was dismissed.

The FWC further noted that in future, “where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation.”

Another Stop Bullying Application held to be Reasonable Management Action
Bevan Gillies applied to the Fair Work Commission (in the case of Gillies [2016] FWC 5722) for an order to stop bullying against Mr Mofflin, the Western Australian Depot Manager. Mr Gillies alleged that Mr Mofflin subjected him to a “sustained campaign of bullying and intimidation.” The allegations of bullying and intimidation included repeated threats of dismissal, illegal punishments for unspecified transgressions, and illegal punishments standing up for his basic employee rights.

Mr Gillies was issued with correspondence setting out the Employer’s disappointment with his work performance. This correspondence referred to the incident of refusing to do a “dog run”, refusing to fill the bulk tank at the local Caltex petrol station and the ongoing dispute regarding the Uniform Policy. The correspondence stated, “this behaviour is unacceptable. Any further occurrence of not complying with a lawful direction from one of your Managers will see you place your employment at risk.” Mr Gillies was also involved in incidents where he was late to work, but contended “night shift workers are not supposed to have a change of start time. It’s in the award and it’s to do with sleep patterns.”

The FWC considered that this was a case of Mr Gillies “refusing to carry out lawful instructions by his Employer and being told that if it continues, his continued employment is at risk.” Commissioner Cloghan stated “to put it bluntly, I am sure Mr Gillies did not expect flowers from the Employer for the way he was conducting himself?” The application was dismissed.

Both interesting cases that highlight the distinction between what constitutes bullying and what is considered to be reasonable management action (and therefore not bullying).If the Companies had educated their staff about this distinction they may have avoided a costly, time consuming hearing in the FWC.

To ensure your staff are aware of their responsibilities and rights in relation to bullying and reasonable management action contact Franca at EEO Specialists to find out more about what training is necessary.