What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 26 Feb 2024 – 03 Mar 2024

Worker who quit ‘in the heat of the moment’ did not constitute resignation

The Fair Work Commission (FWC) recently dealt with a worker’s claim that his termination was ended at the employer’s initiative when he resigned “in the heat of the moment.” He asserted that the employer should have clarified his intention, especially since he left in an emotional state.

Li maintained that he did not resign but left due to illness, supported by medical documentation. On the other hand, Vaux insisted that Li resigned and offered him re-employment under specific conditions, which Li rejected.

Despite no explicit resignation letter, Li’s actions, including leaving and returning to drop off keys and collect belongings, were interpreted by Malvern Tyres as resignation. However, the FWC found that the circumstances suggest a momentary emotional reaction rather than a genuine intent to resign.

The FWC further said that Li had acted in a similar manner in the past. “Vaux gave evidence that Li had left the premises previously in an emotional state and that he had always returned to work afterwards. Other evidence suggested this had occurred five or six times,” the FWC said.

“In the situation that arose on 7 December 2023, it was not open to Malvern Tyres to simply treat the ostensible resignation as terminating the employment without clarifying or confirming with Li, after a reasonable time, that he genuinely intended to resign,” the FWC added.

“Further, it should have been understood by Malvern Tyres, once it received the medical certificate stating Li was unavailable to work until 14 December 2023, that Li did not intend to resign.”

Sign company and bully boss fined $40,000

The court heard the sub-contractor suffered verbal abuse, intimidation and threats by Pearson over a period of four years.

The bullying culminated in a phone call in August 2021, recorded by the sub-contractor, during which Pearson yelled, swore and abused them after they questioned the legality of working during a COVID-19 lockdown. The sub-contractor described feeling anxious and worn down by the abuse and developed a mental injury that left them unable to work.

WorkSafe inspectors visited the workplace and found that the sub-contractor was one of a number of workers who had been subject to Pearson’s inappropriate behaviour.

While the company had policies and procedures in place to address workplace bullying, they were found to be inadequate as they did not provide information about how to report inappropriate workplace behaviour; did not provide definitions or examples of bullying; and workers had not been provided any training.

Worker fired over workplace harassment questionnaire

The employee worked at a restaurant in Queensland, operated by the employer. The employee made an unfair dismissal claim and sought compensation for lost wages, citing that he couldn’t return to the workplace due to false sexual harassment allegations made against him.

He was accused of sexually harassing several female employees. The employer conducted a survey among female employees, with five reporting instances of sexual harassment witnessed by the worker towards other employees and six claiming to have personally experienced the worker’s misconduct.

“To establish reasonable grounds requires the tests of gathering the information and investigating and relevantly notifying the parties of the reasons and seeking relevant responses. None of those steps were taken,” the Commission said.

“The survey questions disproportionately focused on the [worker],” it added. “The [employer] could not have held a reasonable belief at the time of the dismissal that the [worker] had engaged in the conduct, having not had any discussion with him or performing any investigation or consideration of the surrounding circumstances.”

“The evidence of the witnesses was not credible as set out due to the formulation of the survey, their personal relationships to the [parties], and the similarity of their responses, which cast doubt over the independence of the survey responses,” it said.

Thus, the Commission said the worker’s termination was unfair “due to the lack of procedural fairness and the lack of a valid reason for the dismissal” and ordered the employer to pay compensation.

Other EEO news:

The Closing Loopholes Acts – what’s changing

The second tranche of the Federal Government’s Closing Loopholes Bill has passed both Houses of Parliament and is now awaiting Royal Assent.

You can read the Bill here. The Closing Loopholes Act 2023 and Closing Loopholes No. 2 Act 2024 are changing the laws affecting Australian workplaces. Some of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024  changes relevant to the work of the Commission include:

– changes to the definition of casual employee and changes to casual conversion
– changes to the definition of employment
– changes to intractable bargaining provisions
– changes to enterprise bargaining provisions relating to multi-enterprise agreements and franchisees
– a process for the Commission to make model terms for enterprise agreements
– powers relating to ’employee-like’ workers performing digital platform work in the gig economy including:
– the ability to make minimum standards orders
– dealing with employee-like worker disputes about unfair deactivation from a digital platform
– powers relating to the road transport industry including:
– the ability for new Expert Panels to make minimum standards orders
– dealing with regulated road transport worker disputes about unfair termination of a contract
– powers to register collective agreements relating to regulated workers
– functions relating to a right to disconnect (26 August 2024 (Closing Loopholes No. 2) including:
– a new dispute function
– a process for the Commission to make a model term for awards
– an ‘unfair contracts’ dispute resolution function for independent contractors (below a high-income threshold)
– workplace delegates’ rights for regulated workers

Do not disturb: Australian employers and the right to disconnect

What is the right to disconnect? In short, the right to disconnect is the right of an employee to ignore attempts by their employer or a third party (such as a client), to contact them outside of ordinary working hours. Significantly, however, the right is only taken to be properly exercised where it is reasonable for the employee to have done so in all the circumstances.

The Bill does not provide an exhaustive list of the factors that will be determinative of whether a refusal to engage with contact or attempted work-related contact outside of ordinary working hours is reasonable. It does, however, provide that the following factors must be taken into account in determining this.