What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 22-28 May 2017?

Bullying Allegation Against City of Stirling Councillor
The City of Stirling has been asked by WorkSafe to take steps to ensure that employees are not exposed to bullying behaviour from Commissioner Elizabeth Re. A WorkSafe improvement notice was issued to the City of Stirling, which stated that employees of the City of Stirling had been “exposed to bullying behaviours from an unnamed councillor, including yelling, aggressive language and gestures, swearing, inappropriate and excessive emails and derogatory comments about staff.” WorkSafe has given the City of Stirling until the 4th of August to remedy the situation. Commissioner Re has alleged that the allegations are fabricated and claims that she is subjected to bullying conduct by staff, councillors and the City of Stirling Mayor Giovanni Italiano.

Trial in Progress-Lorna Jane Sued for Bullying
Amy Louise Robinson is suing former employer, Lorna Jane, for $548,000 in damages. Ms Robinson alleges that her area manager, Megan McCarthy bullied her through social media, as well as calling her demeaning names and picking on her because of her weight. Further Ms Robinson alleges that she was called an “oxygen thief” and a “generator” – a term that was used to describe employees who generated problems for management. One month after commencing employment with Lorna Jane, Ms Robinson claims that she arranged a meeting with a Queensland manager to discuss the treatment that she had been subjected to. After this meeting, Ms Robinson was allegedly told that she “would not encounter the same problems in the future.” However, Ms Robinson alleges that this behaviour continued and Lorna Jane failed to take appropriate or reasonable steps to remedy the abuse, resulting in Ms Robinson suffering a major depressive episode. Ms Robinson claims that she has been unable to work since leaving Lorna Jane in December 2012.

During the trial, Ms Robinson was questioned over her failure to include allegations of fat shaming within an email that she sent to a Queensland manager. The email was described as “a long complaint about shift times and work life balance,” but failed to mention any allegations of fat shaming. Ms Robinson stated that she didn’t include such claims in the email, as “it wasn’t the huge issue.”

The Brisbane District Court has recently heard that in September 2012, Ms Robinson was reported to human resources for bullying another employee. Courtney Hood made a formal bullying complaint against Ms Robinson who she claims treated her with “defiant hostility and agitation.” Ms Hood was transferred to another position within Lorna Jane. Queensland Manager, Claire Perrin has also given evidence to the Court that she had received an email about Ms Robinson being “given a hard time” by McCarthy. Ms McCarthy is expected to give evidence later this week.

Board Directors can Seek Stop Bullying Orders under FW Act

A landmark Fair Work Commission decision will allow board directors and chairpersons to seek anti-bullying orders against each other. The decision in Adamson [2017] FWC 1976 concerned the governing board of Anangu Pitjantjatjara Yankunytjatjara Inc (APC Inc). The chairperson Trevor Adamson alleged that the general manager, Richard King, and deputy chairperson, Bernard Singer, had engaged in bullying conduct. Mr Adamson claimed that Mr King and Mr Singer disrespected his wishes, interfered with the conduct of the meetings of the board, orchestrated events to prevent quorums, prevented him from accessing minutes and defamed him. Mr King and Mr Singer denied the allegations and argued that Mr Adamson was not a ‘worker’ for the purposes of the Fair Work Act 2009 (Cth).

The FWC determined that Mr Adamson was a worker for the purposes of the Fair Work Act. Commissioner Hampton stated that a broad approach should be taken to the interpretation of the term ‘worker’ to acknowledge “WHS hazards and risks do not discriminate based on legal relationships or whether a person is paid.” Commissioner Hampton held that the activities undertaken by Mr Adamson as chairperson of APY Inc represented work.

Although the FWC found that Mr Adamson was a worker for the purposes of the Fair Work Act, Commissioner Hampton dismissed the application on the basis that Mr Adamson had not been re-elected to the board at an election in April 2017. On this basis, Commissioner Hampton considered Mr Adamson was not at future risk of being bullied.

Employee’s Fabrication of Medical Certificate Valid Grounds for Dismissal
Halina Bluzer applied for an unfair dismissal remedy in respect of the termination of her employment by Monash University (in the case of Bluzer v Monash University [2017] FWC 2536). On 26 July 2016, Ms Bluzer was dismissed from her position for fabrication of a medical certificate. Murdoch University alleged that Ms Bluzer had fabricated a medical certificate in order to have her annual leave converted to sick leave. The FWC found that on the balance of probabilities Ms Bulzer had fabricated the medical certificate and concluded that this provided Murdoch University with a valid reason to terminate her employment. Commissioner Cribb concluded that Ms Bluzer’s dismissal was not harsh, unjust or unreasonable and dismissed her application.

Dismissal for Medical Reasons Not Managed Well and Considered Harsh
John Finnegan applied for an unfair dismissal remedy in respect of the termination of his employment by Komatsu Forklift Australia. Mr Finnegan had worked for Komatsu for a period of eight years, initially as a Field Service Technician before being promoted to the position of Customer Service Supervisor. On 12 August 2015, Mr Finnegan was placed on a Performance Improvement Plan (PIP) as he had failed to meet his sales budget KPIs for his new role. On 11 March 2016, Mr Finnegan was placed on sick leave due to “on-going concerns regarding behaviour and work performance.” Komatsu requested that Mr Finnegan complete a fitness for duty assessment and a psychological test. The assessment concluded that Mr Finnegan was temporarily unfit for work under his current supervisor (Mr Leontis) and suggested that Mr Finnegan return to work under a different supervisor. On 12 April 2016, Komatsu implemented a return to work plan for Mr Finnegan that involved a different work location and did not involve any KPI requirements.

At the commencement of the third week of the return to work plan, Mr Finnegan was transferred to another location where he would not be under the direct supervision of Mr Leontin. Mr Finnegan expressed concern about the potential of working under the direct supervision of Mr Leontis. As a result of these concerns, Komatsu decided to cease the return to work plan. On 5 May 2016, Mr Finnegan was presented with a Deed of Release as part of an arrangement to bring his employment to an end. Mr Finnegan rejected the Deed of Release and instead requested that mediation be undertaken between himself and Mr Leontis. Komatsu ignored this request and sent Mr Finnegan a letter outlining the new requirements for his return to work on 23 May 2016, on the basis of this alternative managerial arrangement that did not involve Mr Leontis. The letter also specified that part of the return to work arrangement was Mr Finnegan’s performance in line with KPIs.

Mr Finnegan did return to work on 23 May 2016 and instead provided Komatsu with a medical certificate indicating that he was unfit to work. On 24 June 2016, Komatsu wrote to Mr Finnegan seeking advice to his medical condition and the prognosis for his return to work. Mr Finnegan’s medical practitioner wrote to Komatsu advising that Mr Finnegan was unfit to work.

On 25 October 2016, Komatsu wrote to Mr Finnegan indicating that Komatsu was intending to make a determination about Mr Finnegan’s ongoing employment. Komatsu advised that it was considering deeming Mr Finnegan medically unfit to return to work. This decision would result in the termination of Mr Finnegan’s employment. Mr Finnegan’s lawyers responded to the letter requesting a one-week extension. This was granted by Komatsu, however, the second request for an extension was denied. On 22 November 2016, Mr Finnegan’s employment was terminated.

The FWC found that Komatsu had not established that there was a valid reason to dismiss Mr Finnegan. The FWC found: “the stated reason for dismissal involving the applicant’s alleged refusal to work and perform a full range of duties, had no basis in fact, and any other reason for dismissal involving the potential frustration of the employment, has not been able to be established.” The FWC also criticized the manner in which Komatsu notified Mr Finnegan of his dismissal. The FWC stated-

“In circumstances where an employee of some eight years of service who was suffering from mental health issues, and who had previously only communicated via his treating medical practitioner or his lawyer, it was callous, almost beyond belief, for Komatsu to dispatch an email communication as the means to convey the decision to dismiss.”

The court stated that Komatsu would “benefit by reviewing its employee management practices to ensure that communication of any decision to dismiss is conveyed in a manner that is respectful, and maintains basic standards of human dignity.” The FWC also recommended that Komatsu should review its employment practices. The FWC stated:

“any procedures which may involve dismissal from employment should mandate the opportunity for an employee to be provided with a “show cause” meeting with the relevant decision maker before the determination of any dismissal is made.”
The FWC concluded that Mr Finnegan’s dismissal was harsh, unjust and unreasonable. The FWC ordered the payment of $1,250 in compensation.