What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 23 – 29 July 2018

Vulgar Language Valid Grounds for Summary Dismissal but Must Show Connection
A factory worker who was fired in 2016 has had his unfair dismissal overturned by a Fair Work Commission decision. Minas Trialonas formerly worked at Steric Solutions when a factory incident led him to calling his female manager, Leanne Docherty, a “backstabbing c**t”. The following day, he returned to work and apologised. Nonetheless, three days later Ms Docherty dismissed him summarily, because “he d[id] not listen”. However, in her FWC submission, she claimed to have fired him for his consistently vulgar language, for calling her “b**ch” and “c**ksucker”, for his “intimidating behaviour” and for “serious safety breaches”.

At first instance in the Fair Work Commission, Steric Solutions was ordered to compensate Mr Trialonas for $25, 766. On appeal, the full bench overturned that decision in favour of Steric Solutions. On this current redetermination the Deputy, President Peter Sams, found again in Mr Trialonas’ favour. He acknowledged that in ordinary circumstances, the vulgar, inappropriate language was sufficient grounds for summary dismissal. In this case; however, Ms Docherty had chosen to wait three days and dismiss for an unrelated and invalid reason. Indeed, he found that there was a “disconnect” between the reason given at the time for dismissal and the reason in the FWC application, which reasons were “fanciful” and “contradictory”. The dismissal was therefore harsh, unjust and unreasonable, but reinstatement was also deemed to be inappropriate so Deputy President Sams awarded $10, 695.20 in compensation.

Unfair Dismissal for Inappropriate work Relationships Not Substantiated Due to Lack of Evidence
The Fair Work Commission has compensated a former Toyota Australia employee, initially dismissed for his inappropriate workplace relationships. Adrian Tainsh formerly worked as a foreperson at a Toyota paint shop for more than 20 years, and also served as the delegate for the Australian Manufacturing Workers’ Union.

Mr Tainsh was dismissed on two grounds. It was firstly alleged that he had a personal relationship with a female temporary fixed term employee, whom he had allowed unentitled leave and whose contract he had renewed multiple times due to their relationship. It was secondly alleged that he had sex with another female employee while at work. Mr Tainsh denied both accusations. The Fair Work Commissioner, Katrina Harper-Greenwell, found that his dismissal was harsh, unjust and unreasonable, largely due to “unsubstantiated” evidence and unbelievable witnesses. She awarded Mr Tainsh $68, 350 in compensation.

Workplace Bullying and Mental Health Issues Contributed to Employees Suicide
The Northern Territory coroner has found that a Department of Children and Families worker was bullied by her colleagues before she committed suicide. Paula Schubert worked at the department for 32 years, developing anxiety and schizophrenia late in her work life. While she was supported in her health struggles in 2014, it was not until 2016 that her symptoms re-emerged. The coroner, Greg Cavanagh, found that her manager, Patricia Butler, and Ms Butler’s manager, Marnie Dillon, worked with Human Resources to concoct a plan to demote Ms Schubert. He also found that the department was unaware of the appropriate managerial practices and lacked empathy. Despite knowing that the reduced remuneration would cause Ms Schubert more anxiety, her colleagues “took advantage of [Ms Schubert’s] meekness, willingness to please and fear of being pushed out of her workplace”. They proceeded, claiming not to have known of department guidelines that would have allowed Ms Schubert to have fewer responsibilities on the same level of pay. According to Dr Cavanagh, their behaviour breached the anti-discrimination act, which would have required them to make accommodations for Ms Schubert’s psychiatric welfare. Moreover, he found evidence of bullying. When Ms Schubert drew a picture during one meeting, while being in a ‘zombie-like’ state throughout the meeting, Ms Butler asked her to show everyone the minutes she had made. In doing so, she publicly humiliated Ms Schubert. Ms Schubert’s psychiatrist, Dr Chapman, described this event as a “critical event” to her death, occurring only two days prior to the suicide. While declining to comment on any disciplinary action taken, the department “confirm[ed] that two of the employees have resigned and one is on extended leave”.