What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 25 – 31 January 2016

Firefighter’s Union Doesn’t Like Idea of Positive Discrimination in Recruitment
The United Firefighters Union of Victoria has filed a grievance with the Fair Work Commission in order to determine what changes to recruitment may be attempted by Metropolitan Fire Brigade, claiming that its members have not been consulted. The union fears that the MFB may introduce new recruitment selection criteria that would fast-track women through the recruitment process in a bid to increase gender diversity. However the union believes that such changes would constitute “positive discrimination towards women” and may damage firefighter’s confidence and impact on community and firefighter safety. The emergency services minister, Jane Garrett has stated that any suggestion that increasing workplace diversity in the fire bridge would lower standards is a “view that belongs in another country.”

Gender Equity Unlikely in Australia
Mercer’s 2015 Gender Equality report has suggested that the achievement of gender equality in the workplace before 2050 is a pipedream. Although women constitute about 40% of the average company’s workforce, women are lacking in key management positions.

Employer Validly Dismissed for Drunken Violent Behaviour at Work Christmas Party
The Fair Work Commission has upheld the decision of an employer to terminate the employment of an employee who threw his fully clothed colleague into a swimming pool at the work Christmas party. During the party, Damien McDaid was asked to leave twice, both before and after pushing a fellow employee into the pool. He then engaged in a physical alteration with his boss. In his decision, Fair Work Commissioner Bruce Williams noted, “Society no longer readily accepts alcohol consumption as an excuse for bad behaviour and certainly not for physical violence.”

Racial Discrimination Claim Against Westpac
An Adelaide based financial planner has lodged a claim against Westpac bank for $1 million in the Federal Circuit Court after his regional manager allegedly told him that her rich clients would not want to work with another Indian banker. Vikram Chopra was promoted to the position of executive financial direction in 2012, replacing another colleague who was of Indian descent. Westpac then overturned this decision. In 2014 Mr Chopra’s boss, Kristen Greber told Mr Chopra that he should not manage some of her clients because her clients did not want to meet with “another Indian planner,” and these clients felt that they could “say and do whatever they want.” Mr Chopra is suing for $900,000 in lost earnings and $40,000 for emotional pain and suffering.

Underpaid Because “Not an Aussie”
Jeffry Herscu, a Melbourne business has agreed to reimburse a Nepalese woman $23,000 after she claimed she was underpaid because she was “not an Aussie”. The woman alleged that her boss had told her during the interview that he would give her the job, but as she was not an Aussie she would be paid a lesser amount. Mr Herscu was also found to have underpaid a second student. Mr Herscu has signed an enforceable undertaking, which requires him to apologise for his conduct and make a $5000 donation to the Western Community Legal Centre.

Validly Dismissed for Verbally Abusing other Staff
The Fair Work Commission has upheld a decision of an employer to terminate the employment of Jamin Horner for abusing his supervisor in front of other employees. Mr Horner had previously been involved in incidents of swearing and disagreement with his supervisors before the July incident. In July, Mr Horner was frustrated because his employer, Kailis Bros, had failed to comply with occupational health and safety standards. In response he began to verbally abuse his supervisor by telling his supervisor: “I f….ing told you to get the pallets pulled out, I’ve hurt my back going in and out of the racking.” Followed by a lot of f…. this and f…. you.” Deputy President Anne Gooley noted that whilst swearing may be acceptable in a workplace, there is a difference between swearing and abuse. In this instance, Mr Horner’s conduct constituted verbal abuse.

Racial Slurs by Toll Worker
The Fair Work Commission re-heard a decision to reinstate a Toll worker who made Islamic State racial slurs against his colleague. The worker allegedly asked his colleague if he was from the Taliban and made offensive comments about Islamic State. These comments allegedly included: “Does Islam say to kill? … I enjoy seeing people having their heads cut off, do you enjoy it too?” The worker was initially reinstated and back-paid 7 weeks wages after lodging an unfair dismissal complaint with the FWC. This decision was appealed as Commissioner Riordan had failed to take into account that the employee’s misconduct was a “pattern of unacceptable behaviour.”

the worker Johnpulle was dismissed after he was alleged to have made offensive comments about Islamic State and the Taliban to a colleague of Middle Eastern heritage on January 7, 2015. Although these comments were serious in nature, they were in fact similar to comments that Johnpulle had made on three separate previous occasions. As Johnpulle had been told to cease conversing with the colleague in this way and had agreed to do so, these comments were treated as having been settled informally. The Commission was asked to consider whether these previous instances constituted a relevant ‘other matter’ that it was entitled to consider in determining whether the dismissal of Johnpulle was ‘harsh, unreasonable or unfair’.

At first instance, Commissioner Riordan found that these comments were “settled issues,” so to revisit them would be inappropriate, unfair and at odds with the objects of the Fair Work Act. On appeal, the Full Bench held that while these earlier instances of inappropriate behaviour were not in and of themselves a valid reason for dismissing Mr Johnpulle, they were indeed relevant matters to consider in determining whether the dismissal was harsh, unjust and unreasonable. These matters were particularly relevant as Johnpulle had persisted to make offensive comments despite being told to cease such behaviour and agreeing to do so. Consequently the matter has been referred for reconsideration.