What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 26 June – 2 July 2017?

Employee Argues Employer should Reimburse Leave Taken due to Psychological Injury Related to Bullying
Patricia Read, a former town planner with Cairns Regional Council has alleged that on-going bullying and harassment in the workplace led to her development of a psychological injury. Ms Read, who took leave in order to receive treatment for her injury, claims that she should be re-issued with these leave entitlements. The Queensland Industrial Relations Commission heard the matter this week. The decision has been reserved.

Blind Recruitment Decreasing Job Prospects of Senior Women
A study conducted by the Department of the Prime Minister and Cabinet (DPMC) has revealed that blind recruitment may be decreasing the job prospects of senior women. In this study, the DPMC used 2100 public servants from 14 departments to assess applications for a hypothetical senior role in their organisation. The study revealed that public servants “engaged in positive (not negative) discrimination towards female and minority candidates.” The study found that “participants were 2.9 per cent more likely to shortlist female candidates and 3.2 per cent less likely to shortlist male applicants when they were identifiable, compared with when they were de-identified.” Indigenous female candidates were “22.2 per cent more likely to be shortlisted when identifiable compared to when the applications were de-identified.” Study leader, Professor Micheal Hiscox stated, “the results indicate the need for caution when moving towards ‘blind’ recruitment processes in the Australian Public Service, as de-identification may frustrate efforts aimed at promoting diversity.”

Townsville Hospital Reviewing Harassment Claims
The Townsville Hospital and Health Service (THHS) is responding to harassment claims at four facilities including Charters Towers Community Mental Health. Since November 2016, employees at Townsville Hospital have lodged 67 allegations of bullying and harassment. In rural facilities, employees have lodged eight complaints. Townsville Hospital and Health Service Chief Executive Dr Peter Bristow has stated that an independent review into workplace culture will be carried out to address this issue.

AMA Calling for Tougher Penalties for Hospitals that Ask Female Drs About Plans ot Have Children
The Australian Medical Association has called for tougher penalties for hospitals and training institutions that ask female doctors about their plans to have children during the recruitment process. Female doctors have reported being asked directly about their intentions to start a family, or indirectly asked whether they are intending to take extended leave at any point. One female doctor, who applied for a specialist position whilst pregnant, reported being told “we’re going to employ someone else because you are pregnant, but come back to us when you have had the baby and see if we have something else for you.” AMA NSW President, Professor Brad Frankum stated that this “is not information an employer needs to be privy to ahead of employing someone and nor should they be seeking it on a formal or informal basis.” Similarly, Sex Discrimination Commissioner, Kate Jenkins stated, “pregnancy or potential pregnancy should not be unfairly taken into account when considering a person’s suitability for a job.”

Wrong Application of Temporary Absence Provision in FW Act Related to Illness
Achok Gumwel applied for an unfair dismissal remedy (in the case of
Gumwel v JBS Australia Pty Ltd [2017] FWC 3262) in respect of the termination of her employment from JBS Australia Pty Ltd. Mrs Gumwel’s employment was terminated on 27 January 2017, on the basis of her “excessive absence from the workplace.”

On 3 January 2017, Mrs Gumwel provided JBS with a medical certificate declaring that she was unfit for work between the dates of 3/01/2017 and 03/04/2017 inclusive. On 17 January 2017, JBS wrote to Mrs Gumwel, requesting information about Mrs Gumwel’s capacity and her intended date to return to work. JBS advised that it was considering terminating Mrs Gumwel’s employment. In her response to this letter, Mrs Gumwel indicated that she intended to return to work as soon as she was able. Further, Mrs Gumwel attached a medical certificate from her doctor indicating that Mrs Gumwel would be fit to return to work from 4 April 2017. On 27 January 2017, JBS advised Mrs Gumwel that her employment had been terminated.

In this case, the FWC found that the employer had mistakenly applied the temporary absence provisions, contained within the Fair Work Regulations 2009. Pursuant to section 352 of the Fair Work Act 2009 (Cth), an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Regulation 3.01 provides that an illness or injury is not a prescribed kind of illness or injury if the employee’s absence extends for more than 3 months. JBS stated that at the time, it believed it had a valid reason to terminate Mrs Gumwel’s employment given that the medical certificate declared that Ms Gumwel would be unfit to work for a period of more than three months. JBS later accepted that it could not lawfully terminate Mrs Gumwel’s employment until after the temporary absence period had eventuated. On this basis, the FWC held that Mrs Gumwel had been unfairly dismissed.

Despite this finding, the FWC dismissed Mrs Gumwel’s application for an unfair dismissal remedy. The FWC stated that as Mrs Gumwel had unreasonably refused to accept reinstatement to her former position, an order for compensation was not appropriate. On this basis, the FWC dismissed Mrs Gumwel’s application.

Dismissal for Emailing Work Information to Private Email Valid Reason for Dismissal but Still Considered Harsh and Unreasonable
Ross Hemmingson applied for an unfair dismissal remedy (in the case of Hemmingson v Note Printing Australia Limited [2017] FWC 3063) in respect of the termination of his employment from Note Printing Australia Limited. Mr Hemmingson was summarily dismissed for serious misconduct on 4 August 2016 after it was revealed that he had sent a number of work emails to his personal email address. Three of these emails contained confidential and sensitive technical information. This conduct was considered to breach the Code of Conduct (Code), the Acceptable Use of Technology Policy (Technology Policy) and the Employee Intellectual Property and Confidentiality Deed (Employee Deed). The Fair Work Commission found that Mr Hemmingson had breached the Technology Policy and consequentially breached the Code. On this basis, the FWC concluded that NPA had a valid reason to terminate Mr Hemmingson’s employment.

Although there was a valid reason for dismissal, the FWC concluded that Mr Hemmingson’s dismissal was harsh and unreasonable. This conclusion was reached upon consideration of the broader circumstances of the case, including the fact that thirteen days passed between the company becoming aware of Mr Hemmingson forwarding the sensitive emails to his private email address and the decision to summarily dismiss Mr Hemmingson. The FWC has requested that the parties provide additional information to enable the determination of an appropriate remedy.

Disability Discrimination due to no Real Consideration of Return to Work Options
Dorris Maharaj applied for an unfair dismissal remedy (in the case Maharaj v Northern Health [2017] FWC 2997) in respect of the termination of her employment with Northern Health.

On 14 May 2015, Ms Maharaj was involved in a car accident on the way to work. Ms Maharaj fractured her C5 vertebrae in this accident. From the time of the accident, Ms Maharaj remained in contact with her Unit Manager, Ms Scully, to advise her of the progress of her recovery. In March 2016, Ms Maharaj spoke to Ms Scully, informing her that she was looking forward to returning to work. In August 2016, Ms Stent, a return to work co-ordinator contacted Northern Health to discuss a return to work plan for Ms Maharaj. On 7 September 2016, Mr Keddie, another return to work co-ordinator, contacted Northern Health, seeking a meeting to discuss Ms Maharaj’s return to work. On 12 September 2016, Northern Health advised Mr Keddie that there was no return to work program available for Ms Maharaj.

On 14 September 2016, Northern Health terminated Ms Maharaj’s employment. Northern Health decided to terminate Ms Maharaj’s employment on the basis that, following a non-work related injury Ms Maharaj:
• had been absent from the workplace for a significant period of time;
• was unable to perform her pre-injury duties and hours; and
• was unfit to return to her pre-injury duties and hours in the foreseeable future.

The FWC held that Northern Health had no valid reason to terminate Ms Maharaj’s employment. The evidence in this case contradicted the reasons for termination provided by Northern Health. The FWC stated that Northern Health “appears to have chosen not to explore in any substantive way if Ms Maharaj could return to work, when that might occur and on what conditions.” The evidence before the Commission indicated “Ms Maharaj could have returned to her pre-injury duties on a graduated return to work building up, over time, to her normal hours of duty.” On this basis, the FWC was satisfied that there was no valid reason to dismiss Ms Maharaj.

The FWC also found that, prima facie, Northern Health breached section 5 of the Disability Discrimination Act 1992 (Cth) by treating Ms Maharaj less favourably on the basis of her disability. The FWC stated that “by failing to engage in any discussion with respect to a return to work, Northern Health has seemingly abrogated its responsibilities” under the Act.

The FWC concluded that the termination of Ms Maharaj’s employment was unreasonable and ordered reinstatement.

Valid Reason for Termination of Employment
Warwick Crebert applied for an unfair dismissal remedy (in the case of Crebert v Mt Arthur Coal Pty Limited [2017] FWC 3101) in respect of the termination of his employment with Mt Arthur Coal Pty Ltd. On 10 February 2017, Mt Arthur Coal terminated Mr Crebert’s employment on the basis that Mr Crebert’s conduct in pre-start meetings breached the BHP Code of Business Conduct (Code) and the BHP Charter Values (Charter). In particular, it was alleged that Mr Crebert had breached the Code and the Charter by:
• failing to comply with an express direction given to him to discuss the requirements of the Charter and the Code with the crew of employees that he supervised;
• allowing Mr Crouch to address the crew of employees that Mr Crebert supervised, at the pre-start meeting about an incident in which one employee had allegedly “dobbed in “another employee for sleeping on the job;
• failing to properly address Mr Crouch’s conduct during the pre-starting meeting; and
• approaching the employee who had allegedly “dobbed in” another employee to question why he reported the incident to Dispatch.
The FWC held that Mr Crebert’s conduct provided Mt Arthur with a valid reason to terminate his employment. The FWC concluded that Mr Crebert’s dismissal was not harsh, unjust or unreasonable.