What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 27 February – 5 March 2017

Qld Industrial Court VP Dianne Linnane Under Investigation for Bullying
The investigation into the conduct of Queensland Industrial Court Vice-President Dianne Linnane is continuing. In November 2016, Justice Department Deputy Director-General Simon Blackwood commissioned an independent inquiry into the conduct of Ms Linnane. At the time, it was alleged that Ms Linnane was being investigated in relation to allegations that she bullied Industrial Court Commissioner Minna Knight. It was alleged that Ms Linnane bullied Ms Knight by scheduling her to preside over hearings despite medical advice. Since that time, the scope of the inquiry has broadened. The inquiry will consider Ms Linnane’s conduct in relation to Industrial Commission Deputy President Deidre Swan, retired Commissioner Don Brown, Deputy Industrial Registrar Christopher Chadwick and former court associates.

Ms Linnane has made an application to the Queensland Supreme Court to have the investigation declared unlawful. Further, Ms Linnane is seeking a ruling that the investigation, Barry Sheriff, does not have the power to demand documents from either herself or Queensland Industrial Court President Glenn Martin. This application will come before the Queensland Supreme Court in March.

Sexually Inappropriate Behaviour Unlawful but not Sufficient Grounds for Dismissal
The Fair Work Commission has ordered Bendigo Health Care Group to pay an employee who was unfairly dismissed $2,014.89 (plus superannuation). Michael Renton was dismissed in August 2016 after an incident in the workplace. The incident involved Mr Renton posting a video to Facebook in which he ‘tagged’ two work colleagues with the statement ‘Frank Christie getting slammed by Jo Keown at work yesterday!’ The video was sexually explicit in nature, involving an obese woman in her underwear dropping her stomach on to the back of a man on all fours, also in his underwear. At around the same time, Mr Renton left five blobs of white sorbolene cream and tissues on Mr Christie’s desk at work. Mr Christie took this to suggest that he or someone else had masturbated at his desk. Mr Christie complained about the Facebook post and the blobs of sorbolene cream on his desk.

The FWC stated that “Mr Renton’s conduct displayed an appalling lack of judgment and concern for the effect making such a post might have on his two colleagues.” Commissioner Bisset considered that by tagging work colleagues in the post, Mr Renton suggested that sexual activity had occurred at work between them. Consequently, these colleagues had a right to feel aggrieved at his conduct. The FC considered that Mr Renton’s conduct provided his employer with a valid reason to termination his employment as Mr Renton failed to display an appropriate standard of conduct in his dealings with his colleagues or his employer. On fine balance, the FWC concluded that the dismissal was harsh as it was disproportionate to the misconduct that occurred.

The FWC considered that Mr Renton would have been likely to receive $14,392.04 (plus superannuation) if his employment had not been terminated. This amount was reduced by 30% due to the failure of Mr Renton to mitigate his loss. However, the FWC also held that this amount should be subject to a further 80% reduction due to Mr Renton’s misconduct.

AFP Put on Notice to Respond to Bullying Questions Posed by Senator Xenophon
The Australian Federal Police has been put “on notice” to respond to a number of questions relating to the prevalence of bullying and the availability of mental health services for employees. At a Senate Estimates Committee hearing this week, AFP Commissioner Andrew Colvin was put on notice that the AFP will have to respond to a number of questions posed by Senator Nick Xenophon. In particular, the AFP will have to provide the Committee with information on the number of reported bullying incidents and the qualifications that must be held by AFP welfare staff including social workers and psychologists.

Currently, the Australian National Audit Office is conducting an audit to “examine the effectiveness of the AFP in managing the mental health of its employees.” This audit will consider AFP governance and risk management practices in relation to the management of mental health and assess the management of employee mental health throughout their career lifecycle.

Survey Shows Racism at Work
Professor Kevin Dunn, from Western Sydney University has surveyed 6000 respondents to examine attitudes towards cultural difference. The survey found that 32% of respondents had experienced racism within the workplace. Respondents with a Language Other Than English background reported the highest rates of racism within the workplace (54.1%).

Bullying Allegations in Cairns Hospital
A former Cairns Hospital nurse has called for an independent investigation into workplace bullying. Michele Doran was employed by Cairns Hospital for five years until she resigned in 2015. Ms Doran alleges that she was bullied after making a complaint about patient management. Ms Doran stated that “[she] was made to feel worthless and always that [she] shouldn’t have advocated for [her] patient as [her] complaint involved a senior doctor.” Ms Doran noted “many staff would talk about [the prevalence of bullying] among themselves, but would never approach management because they knew they would come off worse and that nothing would be done.” Ms Doran has made a formal complaint to the Cairns and Hinterland Hospital and Health Service.

Stop Bullying Order Refused Because Behaviours Not Considered Bullying
The Fair Work Commission has dismissed an application for an order to stop bullying (in the case of Brown v Park Beach Bowling Club Limited v Ors [2017] FWC 896). The applicant, Belinda Brown was employed as a casual food and bar attendant at Park Beach Bowling Club Limited (Club). Ms Brown applied for a stop bullying order against Grant Walden (CEO) Kelly Walcot (Administration and Events Manager) as persons who had allegedly engaged in bullying behaviour. Ms Brown identified four instances upon which she alleged that she had been bullied.

The first instance of alleged bullying relates to investigations that were carried out after complaints were made against Ms Brown. On 31 October 2015, Mr Patricks made a complaint against Ms Brown after another co-worker told him that Ms Brown made a derogative comment about his weight after he received a certificate of appreciation from the Club. It was alleged that Ms Brown told two other employees that she might “have to put on 80 kilos before [she could] be recognised for an award.” The other complaint related to Ms Brown allegedly using aggressive language towards another staff member. Ms Brown claims that the Club and Mr Walden engaged in bullying behaviour by failing to conduct a full and thorough investigation of these complaints, and by issuing Ms Brown with a written warning in relation to the incident involving Mr Patricks.

During the investigation of Mr Patricks’ complaints, the Club engaged two external human resources consultants. The first consultant held that there was insufficient third-party documentation to support the allegation. The second consultant held that the Club had a “a reasonable basis” for determining that Ms Brown had made the comment, but did not recommend that Ms Brown receive a written warning, or be subjected to any other disciplinary action. Despite this finding, Ms Brown was issued with a written warning letter on 18 October 2016, in relation to the “making of inappropriate and insulting comments towards former employee Frank Patricks towards the end of 2015.” The FWC considered that “the decision by the Club to issue a written warning to Ms Brown in October 2016 for the incident involving Mr Patricks about 12 months earlier lacked any evident and intelligible justification and was unreasonable.” Accordingly the FWC held that this decision was not reasonable management action carried out in a reasonable manner. Despite reaching this finding, the FWC rejected Ms Brown’s claim that the Club failed to conduct a full and thorough investigation of the two complaints.

The other instances of alleged bullying including an incident where a co-worker pushed Ms Brown’s arm down so that he could pass, and another incident where Ms Brown was reported for being rude and insubordinate towards her supervisor. The FWC held that these incidents did not constitute bullying. Accordingly the FWC held that Ms Brown was not bullied at work.

Qld State Laws Now Allow for Stop Bullying Orders
The Industrial Relations Act 2016 (Qld) came into force on 1 March 2017. This Act gives the Queensland Industrial Relations Commission power to make “stop bullying orders” on application by a State employee. These provisions were modelled on those contained within the Fair Work Act 2009 (Cth). Previously, Queensland State employees were unable to apply for a ‘stop bullying order’ as the anti-bullying legislation contained within the Fair Work Act 2009 (Cth) only applies to employees who work in a ‘constitutionally covered business.’