What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 27 January 2020 – 2 February 2020

Independent Commission Identifies Corrupt and Bullying Culture at SA Health

CEO of SA Health, Christ McGowen, has told staff that the Government Department will adopt a ‘truly open and accountable culture,’ following concerns raised by an Independent Commission Against Corruption (ICAC) report. Dr McGowan declared that ‘a line in the sand will be drawn’ following Commissioner Bruce Lander’s damning report into the department. The report, entitled Troubling Ambiguity: Governance in SA Health, identified a host of issues with SA Health. This included a professional culture characterised by corruption, intimidation and endemic bullying. The report also identified that poor conduct and practices are ‘common and accepted’ within the department and that the environment is one where ‘personal interests are preferred at the expense of the public interest.’ In his weekend bulletin to staff, McGowan says that Health Minister Stephen Wade and the executives of each of the state’s Local Health Networks are ‘all committed to introducing positive and sustained reform to our health system.’ ‘A lot of work has already gone into tackling the issues raised in the Commissioner’s report,’ he wrote. This includes the establishment of an inter-agency task force that will oversee SA Health and push for ‘industrial reform, cultural reform and practice reform’ within the department. The Government announced that McGowan and Central Adelaide Local Health Network chief executive Lesley Dwyer will head the task force. And while this initiative marks a positive step in the right direction, McGowen conceded that ‘there is much more left to do.’ However, McGowen concluded that ‘by working together, I’m confident we can make a real difference to the way our health system operates and deliver tangible benefits for our patients and our communities.’

Unfair Dismissal Case Says the 21st Day Must be a Working Day

A recent Fair Work Commission decision has considered whether the 21-day limitation period for lodging an unfair dismissal claim includes public holidays and weekends. Pursuant to s 394(2) of the Fair Work Act 2009 (Cth) (‘FW Act’), employees who believe they have been unfairly dismissed must apply with the Fair Work Commission (FWC) within 21 days after the dismissal took effect. While the law on this point has, until now, proven inconsistent, Alastair Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489 (Boyd) conclusively held that if the last day of the limitation period falls on a weekend or public holiday, the time for filing the application is extended to the following business day. In Boyd, an employee who was dismissed by MarketTrack Global Pty Ltd T/A Numerator putatively failed to lodge his unfair dismissal claim within the statutory period. Mr Boyd’s lawyer wrote to the FWC on the same day, arguing that the application was filed in time due to the operation of s 40A of the FW Act and s 36 of the Acts Interpretation Act 1901 (Cth) (‘AI Act’). Section 36(2) of the AI Act provides that ‘[i]f an Act requires or allows a thing to be done’ and ‘the last day for doing the thing is a Saturday, a Sunday or a holiday, then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.’ The FWC accepted Mr Boyd’s submissions, and held that the correct approach to construing s 394(2) of the FW Act was by reference to s 36(2) of the AI Act. In effect, this meant that if the last day of the 21-day limitation period falls on a Saturday, Sunday or public holiday in the State where the unfair dismissal application is to be filed, the Applicant may have until the following business day to file the application.