What’s been happening in Australia in relation to sexual harassment, discrimination, and bullying from 22 April 2024 – 28 April 2024

Survey finds that 4 in 10 Aussies check work emails while on leave 

According to a new report from Robert Walters, 4 in 10 employees across Australia are checking their work emails even when on annual leave, The report found that employees are using their holiday time to catch up on work-related tasks as 63% don’t feel like their annual leave entitlement is enough to switch off and take a break. The report also indicates that nearly 71% of employees say they don’t feel ‘refreshed’ after returning from an annual leave break. 

In Australia, lawmakers passed a new Right to Disconnect that will allow employees to ignore attempts of work-related contacts outside their shifts in certain circumstances. The aim of this new law is to create legal permission to disconnect without fear of work-related repercussions. 

Worker disputes dismissal date after failing to open email account 

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who filed her application outside the 21-day lodgement period. The case raised important questions about the circumstances under which the FWC may allow additional time for an application to be made. The employer argued that the worker had abandoned her employment, while the worker claimed she had been dismissed. The worker filed her application under s.365 of the Fair Work Act 2009 on January 29, 2024, which was beyond the 21-day lodgement period. 

The FWC had to determine whether the application was out of time and, if so, whether additional time should be allowed for the application to be made. The FWC found that the worker’s contract of employment was terminated on January 4, 2024, when she received an email from the employer confirming the termination of her employment. The email was sent to the worker´s Gmail account, which she had previously instructed the employer to use for correspondence. The FWC noted that “it was reasonable for [the employer] to rely on this means of communication with [the worker] in circumstances where she had nominated this as her preferred means of communication on 10 October 2023, and had not since changed her instructions to [the employer].” The FWC considered other factors, such as the worker’s attempts to obtain legal representation and her personal circumstances but found that these did not amount to exceptional circumstances warranting an extension of time. 

Ultimately, the FWC concluded that there were no exceptional circumstances in this case that would allow additional time for the worker to make her application. The FWC emphasised that “at its highest, the facts establish that [the worker] did not know that her employment relationship was at risk, or that it was terminated on 4 January 2024, because she was wilfully blind to its attempts to communicate with her.” The FWC noted that while the worker had contacted her legal representative within the 21-day filing period, there was no explanation for why the application was not filed promptly thereafter.

In dismissing the application, the FWC reiterated the strict nature of the 21-day lodgement period and the limited circumstances in which extensions may be granted. 

Survey shows culture of bullying in trainee doctors 

Non-binary and women medical trainees around the nation report higher experiences of bullying and mistreatment. Serious concerns about the culture of medicine were raised by trainee doctors of all genders in the Australian Health Practitioner Regulation Agency survey of more than 23,000 doctors in training in 2023. 

Those who identify as non-binary people reported the most instances of bullying, harassment, discrimination and/or racism. 16% of non-binary respondents disagreed that bullying, harassment, and discrimination is not tolerated by anyone in the workplace. Some 32% of female respondents witnessed bullying, harassment, discrimination, or racism in the past year, while 58% of non-binary respondents said the same. 

More than 18,000 participants answered a question about their gender, with more than 9,000 trainees identifying as female, 8,000 as male and 67 as non-binary. Those who identified as non-binary witnessed bullying and discrimination at nearly double the rate reported by male and female trainees and pointed towards medical colleagues and other health practitioners as the source. 

Boxing Australia coach quits Olympics over misconduct claims 

Boxing Australia’s national coach has withdrawn from the Paris Olympics after admitting to bullying and sexual misconduct towards female fighters. Jamie Pittman was accused of 11 different code of conduct breaches following overseas tours last year by the Combat Institute of Australia, acting on behalf of several elite boxers. 

The National Sports Tribunal, an independent government body established to resolve sports-related disputes, heard damning evidence against him last month, details of which only became public on Wednesday. During the hearing, Pittman, 42, said he felt “ashamed and embarrassed” and would not contest the findings, accepting that “certain comments he made were inappropriate”.  

Worker put on forced annual leave amid employer’s legal dispute with landlord 

The FWC recently dealt with an unfair dismissal case involving a worker employed by the Platinum Hospitality Group (Aust) Pty Ltd, which owns and operates a fast food and convenience store business in Queensland called the Loaded Burger. The case highlights the importance of employers following proper procedures when dismissing employees, even in situations where the business is facing operational challenges. 

The worker was employed on a permanent part-time basis from June 3, 2022, until his dismissal on November 17, 2023. The dismissal occurred after the employer ceased trading at the location where the worker was employed. The worker was employed by the Loaded Burger from June 2022 until his dismissal in November 2023. He mainly worked at the Morayfield location but occasionally worked at the Caboolture location.

In September 2023, the landlord of the Morayfield premises changed the locks, preventing the employer from carrying out its business there. The worker was informed by the employer that he would be provided with work at the Caboolture store, but according to records, he only worked there on one occasion. The worker claimed that he was “put on annual leave and told to stay on annual leave until further notice” without being given the option to choose. On November 17, 2023, the worker received an email from the employer notifying him that his annual leave had been exhausted and that his employment was being terminated due to the employer’s inability to offer him any employment. 

The FWC found that the worker’s dismissal was harsh, unjust, and unreasonable. The Commission determined that there was no valid reason for the dismissal related to the worker’s capacity or conduct, and the employer had not complied with its obligations under the relevant modern award to consult with the worker about the redundancy. Furthermore, the FWC accepted the worker’s evidence that he was not warned about the possibility of his employment being terminated and was placed on annual leave without his consent. 

Manager tells worker: Just leave, I don’t want you here during heated exchange 

The FWC recently dealt with a case involving a worker who claimed to have been dismissed from his employment. On the other hand, the employer disputed the worker’s assertion, arguing that the worker had not been dismissed. The case revolved around the central question of whether the worker’s employment had been terminated at the employer’s initiative or if the worker had voluntarily resigned.  

According to the employer’s evidence, the worker arrived late to work and had a heated exchange with the warehouse manager. The worker allegedly became angry, raised his voice, and swore at the warehouse manager. In response, the warehouse manager asked the worker to leave the workplace, stating, “I said to the [worker], ‘You know what man, just leave, I don’t want you here if you are going to be like this’.” In his witness statement, the warehouse manager clarified that his intention was not to dismiss the worker but rather to defuse the situation and give the worker a chance to calm down before returning to work.

The key issue for the FWC to determine was whether the employer’s actions caused the termination of the worker’s employment. While the warehouse manager’s actions, viewed in isolation, could be construed as leading to the termination, the FWC emphasised the importance of considering all the circumstances, including the conduct of both the employer and the worker. “Having regard to all the circumstances. I am not satisfied that the [worker] was terminated at the initiative of the employer. While the actions of [the warehouse manager] viewed in isolation, could be found to be action that brought the employment relationship to an end, all the circumstances must be considered,” the FWC stated in its decision. 

The FWC noted that there was nothing in the worker’s conversation with the HR manager to suggest he thought he had been dismissed. The HR manager made it clear that she wanted the worker to return, but the worker indicated he would not because he felt unsafe. However, the FWC found no evidence to support the worker’s claims of an unsafe workplace.

Ultimately, the FWC upheld the employer’s jurisdictional objection, determining that the worker’s employment ended on the date when he advised the HR manager that he did not intend to return to the workplace.

Victoria unveils initiative to help injured employees return to work 

The Victorian government has announced the establishment of a new program to help injured employees recover and get back to work. The program, called Return to Work Victoria, is tasked with promoting the effective occupational rehabilitation of injured workers and encouraging employers to provide suitable job opportunities for them.

It is also focused on identifying innovative injury prevention and return to work strategies, according to the government. In a statement, Danny Pearson, the Minister for WorkSafe and the TAC said: “These changes mean Victorian workers will continue to get the help they need, when they need it – while also making sure employers get the right support to keep their workers safe”.