What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 28 January 2019 – 3 February 2019

Adverse Action Claims Available to Probationary Employees
The Federal Circuit Court (in the case of Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd [2018] FCCA 3734) has affirmed that employers are not immune to adverse action claims brought forward by probationary employees. The decision came after a Gold Coast employee was fired five months into a probationary period. At the time, the company’s HR manager advised the applicant that since she was a probationary employee, no reason for the termination had to be given. The former employee then commenced adverse actions proceedings in the Federal Court. She alleged that she was terminated because she had made complaints against fellow employees. In finding in favour of the applicant, the Federal Court sought to remind employers that probationary employees can seek relief under the Fair Work Act. Though probationary employees are precluded from making an unfair dismissal claims, they are still able to commence proceedings for adverse action. The company was ordered to pay $10,000 in compensation.

Two Thirds of ACT Health Staff Witnessed Bullying
According to a review into Canberra’s public health sector, two-thirds of ‘ACT Health’ staff have witnessed workplace bullying. The review was commissioned after senior management had failed to handle a tide of misconduct and bullying complaints. Of the more than 350 staff participating in the review, over 200 reported that bullying within ACT Health had not been resolved. Concerningly, one in ten reported that they had personally experienced sexual harassment while employed within the Canberra public health sector. The report also found that rampant levels of emotional abuse have accounted for significant staff departure rates. In response to the findings, ACT Health Minister, Meegan Fitzharris, has condemned the sector’s cultural landscape as ‘poor’ and ‘worrying’. In a media statement, Ms Fitzharris also said that the ACT Government is committed to ensuring that all of the report recommendations would be ‘fully considered’.

World First: National Sexual Harassment Inquiry Submissions Published
Submissions from the National Inquiry into ‘Sexual Harassment within Workplaces’ were published on the Australian Human Rights Commission’s website last week. The submissions have indicated that instances of sexual harassment are rife across a diverse range of professions and vocations, and that generally they are being poorly handled or ignored. In one notable submission, an anonymous female wrote that she was verbally and physically harassed at a staff function when a colleague tried to ‘unlesbian’ her. After resigning, she was offered a bribe to not lodge a formal complaint with police. The submissions from the inquiry have been described as ‘confronting’ and ‘urgent’. The National Inquiry stands as a ‘world first’ and one of the most comprehensive investigations into sexual harassment to date. Commentators hope that the release of the submissions will act as a catalyst for a coordinated policy response as well as institutional and attitudinal change.

Criticisms Regarding Limitations of AHRC Complaint Process
Limitations on the Australian Human Rights Commission’s sexual harassment jurisdiction have emphasised the need for viable alternatives. The usual approach to sexual harassment claims within the federal jurisdiction requires parties to bring the matter before the AHRC. Commentators have criticised this process as it can take months before the matter is conciliated. Notwithstanding the length of the process, the AHRC is unable to make orders in relation to the matter. If conciliation then falls through, parties are left to pursue the matter in the Federal Court. This process has attracted criticism for the way it creates barriers to justice. In response, there has been growing talk of reform to the Fair Work Commission. By creating a special jurisdiction to expeditiously deal with sexual harassment complaints, the Fair Work Commission may provide a viable alternative to the arduousness of the current model.