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

Fire Brigade Review Launched
The Victorian Equal Opportunity and Human Rights Commission has launched an independent review into equity and diversity within the Metropolitan Fire Brigade (MFB) and Country Fire Authority (CFA). The Independent Review will look at barriers and opportunities for building safe and respectful environments in both organizations, and consider the extent, nature and impact of discrimination, including bullying, and sexual harassment. Victorian Equal Opportunity and Human Rights Commissioner Kristen Hilton stated that the aim of the review: “is to hear from employees and volunteers about what works and what needs to change to create work environments that are safe and inclusive, and where discrimination and bullying have no place.

Dismissal Not Harsh When Related to Dishonesty
The FWC ( In Jeong v Alpha Flight Services) has concluded that the dismissal of an employee who engaged in misconduct including the making of alterations to a medical certificate, and subsequent dishonesty in meetings, was not harsh, unjust or unreasonable. Miss Jisu Jeong was dismissed from employment as a chef, for failure to comply with Alpha Flight’s Honesty, Integrity and Truthfulness Policy.

Ms Jeong changed the period of incapacity on her medical certificate by one day (from 18 January 2016 to 17 January 2016) so that she could return to work one day earlier. Ms Jeong stated that she felt that she needed to return to work as early as practicable so that she didn’t experience further alleged bullying and intimidation for taking time off work.

Prior to this incident, Ms Jeong alleged that she had been subject to bullying and harassment by her manager, Mr Cole. Ms Jeong sustained an injury to her neck on or around 3 November 2015 due to the increase in her workload and the overtime. Ms Jeong discussed the injury with her manager Mr Cole, and requested assistance with completing a formal incident report to WorkCover. Ms Jeong gave evidence that Mr Cole would walk past her work area and hold his neck to one side and say “How’s your neck”, or “I hope you’re doing your stretches” in front of everyone. This behaviour resulted in Ms Jeong feeling that Mr Cole either did not believe that her WorkCover case was genuine, or that Mr Cole was of the belief that she was lying.

At a meeting on 19 January 2016, Ms Jeong was called to a meeting to discuss concerns that Mr Cole had about her medical certificate. Ms Jeong did not admit to making changes to the dates on the medical certificate. At this meeting Ms Jeong alleged that Mr Cole made a threat that WorkCover was reviewing her case, and if the claim was not found to be genuine, she may have to repay the fees that had been paid for medical treatment to-date. Another meeting was held on 21 January 2016 where Mr Cole advised Ms Jeong that her employment was terminated as she had made alterations to the medical certificate.

The FWC found that Mrs Jeong’s misconduct with respect to making alterations to the medical certificate and then being dishonest at following meetings constituted a valid reason for dismissal. The FWC noted, “it is important that employers can expect that when they are provided with medical evidence of an employee’s incapacity, it is a document free from amendments made by the employee….Any alterations made by an employee to a medical certificate provided by a doctor have the effect of undermining the confidence employers can have in such important documents.” Although the FWC noted that Mr Cole “paid unnecessary and unhelpful attention to Ms Jeong’s workers’ compensation claim,” this conduct was not given a significant degree of weight as the relevant meeting at which this conduct occurred was after Ms Jeong’s dishonesty.

Pregnancy and Post Pregnancy Discrimination Rife
Despite a Senate inquiry and the National Pregnancy and Return to Work Review (2014 Report), new parents are still reporting serious fears that starting a family will damage any hope of meaningful career progression. Federal Sex Discrimination Commissioner Kate Jenkins has made several comments regarding the problem of workplace discrimination including the issue of pregnancy and return to work after childbirth. Mrs Jenkins expressed her concern that “in 2016 women are concerned about what will happen to them when they get pregnant. How in this day and age is that an uncertainty? It should be thought of like sick leave: a standard employment event.” Men who have taken time off work after starting a family are also affected by sex discrimination due to lingering assumptions that exist about the role of men as caregivers. Mrs Jenkins has stated that her response to this issue will emphasize prevention, by increasing education to make it more clear exactly what the standards are, and by addressing systemic attitudinal barriers. Mrs Jenkins intends to use her tenure to focus on workplace discrimination, and intends to review what has happened since the Senate inquiry and the 2014 Report over the next few months.

Unfair Dismissal Of Manager Due to Faulty Investigative Process
Gerard Roelofs, a BMW dealership manager, was terminated from his employment as a result of a contravention of the Policy and Procedures Manual. The Policy and Procedures Manual included provisions on Internet usage including that, “the employee will be responsible for all access to and use of the Internet Service through their account.” These provisions also provided that employees were not “to use the service to store or distribute any pornography or any other material which may be objectionable, offensive or illegal.”

Mr Roelofs was issued with a first and final warning after a junior female staff member saw an image on two separate occasions of a naked woman on his screen. In all other respects Mr Roelofs was considered to be an excellent employee. His access to subsequent pornography was blocked on his computer.

Mr Roelofs’ Internet history was again subject to review after the female colleague made a formal complaint in writing. Upon review, it was concluded that Mr Roelofs had,“gone from looking at pornography to looking at lifestyle type stuff with women with little clothing on because he could no longer access pornography.” Mr Roelofs was informed that he had again contravened the Policy and Procedures Manual for which he had previously received a first and final warning and that his employment was being dismissed for serious misconduct.

The FWC found that Mr Roelof’s actions in accessing certain websites was arguably contrary to the requirements contained in the Policy and Procedures Manual and constituted a valid reason for dismissal. However, the dismissal was held to be unfair as Mr Roelofs was denied procedural fairness. Mr Roelofs was awarded compensation in the sum of $25,341.13 for lost income.
What did the Employer fail to do or do wrongly that resulted in the unfair dismissal application being upheld?
1. When the boss (Mr Brandon) found out (through a search of Mr Roelof’s computer by IT) that Mr Roelofs had accessed another site that contained images of scantily clad women he met with Mr Roelofs and told him that he had again contravened the Policy and Procedures Manual for which he had previously received a first and final warning and that his employment was being dismissed for serious misconduct. Mr Roelofs was told if he wanted to respond he could.
2. Mr Brandon and Mr McKay (part-time HR person) came to see Mr Roelofs unexpectedly and he had no idea what they wanted to see him about. They presented some IT searches to him (with no images) and told him he had breached the policy again and would be terminated.
3. Mr Brandon at no time asked Mr Roelofs whether he had accessed this particular site. He did not ask him whether there was any explanation for accessing these sites and merely told him that he had accessed inappropriate websites but not what those websites were.
4. Only after his dismissal did Mr Roelofs became aware that he was accused of accessing the “Wanderlust, wildly beautiful women in nature” website. Mr Roelofs denies having ever visited that site
5. All of the websites on Mr Roelofs’ internet browsing history on which Mr Brandon based the decision to dismiss Mr Roelofs were accessed on one day over a period of less than five minutes.
6. He was handed a termination form which identified the reason for termination as serious misconduct but contained no other detail of the reasons for termination
7. Mr Brandon’s evidence was that he made the decision to dismiss Mr Roelofs before he had spoken to him and before he had asked whether there might be some innocent explanation for why these websites appeared on the printout.

The key errors the Principal Dealer made was that-
a) He did not notify Mr Roelofs of the meeting in advance or the nature of the meeting
b) Because Mr Roelofs was not notified of the meeting he had no real opportunity to have a support person present at the meeting
c) He did not notify Mr Roelofs of the allegations in enough detail for him to be able to respond,
d) He did not give Mr Roelofs the opportunity to respond in any real way
e) Once he met with Mr Roelofs about the allegations he did not then give Mr Roelofs time to think about the allegations before responding to them on a separate occasion.

All of these errors focus around the principles of natural justice which must be followed when making a potentially negative decision against someone. To avoid this problem happening in your workplace, register them for the upcoming public grievance officer workshop in September 2016.