What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 26 July – 1 Aug

Performance Management was not Bullying: No Constructive Dismissal due to Resignation

The Fair Work Commission has dismissed an application by an employee alleging that performance improvement plan and warning letters amounted to bullying. Christopher Burgess applied to the Commission under s394 of the Fair Work Act for an unfair dismissal remedy in relation to Optus. He claimed to have been constructively dismissed when he tendered his resignation via email on 22 February 2021. Optus submitted that the resignation was voluntary and denied that Burgess was left with no alternative other than to resign.

Burgess complained that he was bullied by his manager. The investigation determined that he was subject to reasonable management action during a performance improvement process and the complaint of bullying was rejected. Burgess was then absent from work from December 2020 and resigned on February 22 2021. During this period of absence, Burgess sought a review of the bullying complaint. This review was not completed by the time that he emailed his resignation. Burgess acknowledged that his reporting manager offered him the opportunity to cancel his resignation but submitted that he did not consider it a genuine offer. Burgess further submitted that he was forced to resign due to the health impacts of the performance improvement program process and finding that the behaviour complained of was reasonable management action.

The Commission concluded that there was no evidence that the performance improvement programs set up the applicant to fail. They further considered that language used in the performance improvement program and in warning letters did not meet the standard of bullying. Additionally, because Burgess’s resignation letter stated he “had not made the decision lightly”, the Commission concluded that it was a considered decision or at least that there was no evidence of distress. Furthermore, there was no evidence that he was under extreme pressure or distress when he submitted his resignation. Burgess confirmed explicitly in writing he had no intention of changing his decision following the invitation for withdrawal. Therefore, the circumstances did not support the argument that there was no choice but to resign or that the decision was made while distressed. Therefore, Optus was entitled to treat the resignation as a resignation.

Federal Court Will Not Release Details of ABC’s Defence in Porter Defamation Case

The Federal Court has ruled that the ABC’s defence from the case brought by former federal Attorney-General, Christian Porter, will not be made public. Porter took action against the ABC earlier this year after a Four Corners story revealed an unnamed cabinet minister had been accused of alleged historical sexual assault. The case discontinued in May but details of the ABC’s defence have remained suppressed. Justice Jayne Jagot ruled that the material should not be made publicly available on the grounds that it is necessary to prevent prejudice to the proper administration of justice. She said “the matters in schedule 1, 2 and 3 of the defence remain allegations which will never be the subject of judicial determination given the settlement of the proceeding.” Justice Jagot was satisfied that the principle of open justice must yield to the compromises made to reach a settlement between Porter and the ABC. The material will be made available to the South Australian coroner ahead of a possible inquest into the death of the alleged victim.

Elizabeth Broderick to Lead NSW Parliament Harassment Review

Former sex discrimination commissioner, Elizabeth Broderick AO, will head a review into bullying, harassment and sexual misconduct in the NSW Parliament. Ms Broderick, who has led 15 similar cultural reviews in institutions including the NSW Police Force and the Australian Defence Force said she would put her ear to the ground to listen to the experiences of those connected to Parliament. She said “it is so important that our public institutions like parliament respond to workplace issues quickly and effectively. Part of this is to listen to people working in an interacting with the parliament, so as to better understand their experiences, the current culture and what needs to change.”

Deloitte Reverses “Understanding” that Partners Retire at 62

Deloitte has removed its understanding that partners retire at the age of 62, with the firm set to handle partner succession on a case-by-case basis. The move comes after Deloitte settled a landmark $3.8m age discrimination law suit with former partner Colin Brown, who alleged the practice constituted a discriminatory policy in violation of the Age Discrimination Act (Cth). Chief Executive Adam Powick said the change represented a shift in the policy of partner succession at Deloitte, with a move to early transparent discussions about career plans. This reflects broader changes in the workforce, where aged-based retirement polices are being dismantled as continuing to work into old age becomes more common.

Qantas Settles Age Discrimination Case

Qantas has settled one of multiple active age discrimination cases. Captain Andrew Hewitt was among the 55 Qantas pilots offered an early retirement package at the age of 63 in light of the impact of COVID-19 on the airline. Captain Hewitt had risen to number four on the airline’s seniority list after working with Qantas for 40 years. Qantas argued that its long-haul operations will not return to full capacity until Captain Hewitt is over 65, at which point he will no longer be allowed to operate overseas commercial flights under international civil aviation rules. Captain Hewitt was one of just four of the 55 pilots offered early retirement to refuse the deal, choosing to fight Qantas in the Federal Court of NSW, alleging age discrimination. He argued the early retirement package left him worse off than redundancy packages offered to younger pilots. Those pilots were offered 12 months pay as opposed to 4 months. The matter has now been settled for an undisclosed amount.

Push For Code of Conduct Under Jenkins Review

The Jenkins review of parliamentary culture has heard that Members of Parliament should face sanctions for bad behaviour in their parliamentary workplace. Submissions from the ANU Global Institute for Women’s Leadership and the Australian Political Studies Association drew on input from current and former MPs, staffers and experts on parliaments and workplaces. They unanimously supported an independent umpire with teeth to manage complaints about MPs and oversee anti-bullying efforts. The submission urged that mandatory workplace training and a legislated code of conduct should be introduced. The code would apply to anyone in Parliament including visitors, staff, interns, volunteers and journalists. They assert this code must be complemented by sanctions for noncompliance in order to be taken seriously. The proposed code emphasised mutual respect, courtesy and valuing diversity, none of which is captured in the current ministerial standards issued by Prime Minister Scott Morrison.