What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 28 November – 4 December 2016

Workplace Bullying on the Rise says Safe Work Australia
A report by Safe Work Australia has indicated the rate of bullying in the workplace is on the rise. The report entitled Bullying and Harassment in Australian Workplaces considered data drawn from the 2014/2015 Australian Barometer Project. This data indicated that the “prevalence of workplace bullying in Australia has increased from 7.0 per cent in 2009-2011 to 9.7 per cent. Indeed, the rate of bullying in Australia may in fact have surpassed the rate of bullying in Europe.

The data revealed that, of the workers who reported having been bullied, 12% were bullied daily, 32.6% were bullied at least once a week and 27.9% were bullied at least once a month. The perpetrator was most frequently reported as a supervisor (62.3%) or a co-worker (28%). Of the bullied employed, 3.6 per cent had been bullied for less than one month, 38.6 per cent had been bullied for between one and six months, 12.9 per cent had been bullied for between seven and 12 months and 16.3 per cent of workers had been bullied for more than two years.”

The most common form of harassment reported was being sworn or yelled at (37.2%) and being humiliated in front of others (23.2%). Men were significantly more likely to experience being sworn or yelled at in the workplace, while women were more likely to be bullied and experience unwanted sexual advances or unfair treatment because of their gender. Almost 11 per cent of respondents reported experiencing unfair treatment due to their gender and 7.4 per cent reported being subject to negative comments due to their race or ethnicity.

Several factors were identified as being related to the occurrence of bullying and harassment within the workplace including the psychological and emotional demands placed upon employees, job resources and Psychosocial Safety Climate (management commitment to psychological health and safety). The report provided that “as worker psychological demands and emotional demands increased so did the prevalence of bullying. In contrast, as job resources and Psychosocial Safety Climate […] increased the prevalence of bullying decreased.” Safe Work Australia made a number of recommendations to address this issue, focussing predominantly upon the need to improve Psychosocial Safety Climate within the workplace. These recommendations are summarised below.
• Educating managers and supervisors of the profound effects of workplace bullying and harassment, as well as ensuring that these employees are aware of the causes of workplace bullying and harassment
• Establishing systems to enable upward and downwards communication about bullying and harassment
• Establishing systems that facilitate the participation of all levels of the organisation in monitoring, establishing controls, awareness raising, education and training on matters relevant to bullying, harassment, and risk factors
• Monitoring the Psychosocial Safety Climate of the workplace
• Addressing work conditions that contribute to poor Psychosocial Safety Climate including high demand, high pressure, high competition and low control/power situations in the workplace
• Establishing policies or guidelines for respectful behaviour, particularly toward women and people from diverse ethnic backgrounds

$693m lost Due to Workplace bullying and Job Strain
Safe Work Australia has released a report entitled Psychological Safety Climate and Better Productivity in Australian Workplaces: Costs, Productivity, Presenteeism, Absenteeism. This report “quantifies the cost of poor organizational PSC and poor psychosocial health and highlights the productivity benefits and gains to worker wellbeing that can be achieved by addressing mental health in the workplace.” The report states that approximately $693 million per year of lost productivity is attributable to workplace bullying and job strain.

Australian Public Sector Bullying Rife
About 1 in 6 Public sector employees claim they have been bullied. Although most allegations end up not being proven. This shows either the difficulty to prove the allegations and/or a disconnect between employee’s understanding of what constitutes bullying, harassment and discrimination and what actually is. The information comes from the national annual State of the Service Report 2015-2016 in which 6,768 people from 105 agencies responded.

Age Editor -in -chief Stood Down While Investigation into Sexual Harassment is Conducted
Mark Forbes, Editor-in-Chief of the Age, has been stood down and is under investigation after a young female reporter alleged that he had “groped her on the bottom.” Fairfax Media has stated that they are “committed to a safe workplace and [have] zero tolerance for any behaviour that does not meet the highest standards.”

Age Discrimination Globally High in Australia
A global study conducted by ManpowerGroup Solutions has highlighted that a large percentage of jobseekers perceive their age as a significant career challenge. Thirty seven per cent of Australian respondents indicated that they perceived age to be a career challenge. This figure was above the global average (37%) and second only to Mexico (51%).

Adelaide Mayor Quits Due to Bullying
Regional mayor, Sherron Mackenzie has quit midway through her term, claiming that bullying by some councillors was so bad it was “impossible” to continue. In a letter to Streaky Bay Chief Executive Joy Hentschke, Ms Mackenzie noted, “bullying comes in many forms, lies, snide remarks, nasty texts and even emotional blackmail.” Ms Mackenzie further stated “they’re not bad people – I just don’t know whether we’re not being nowadays taught what it is to be a councillor.” Local Government and Regional Development Minister Geoff Brock said that concerns about elected member behaviour could be raised with the Ombudsman.

WA Dept Aboriginal Affairs Rife with Bullying
A report into the Western Australian Department of Aboriginal Affairs has demonstrated high levels of workplace bullying. A comparison between reported instances of workplace bullying in the WA DAA and the WA public sector demonstrate significant disparity. A high number of the employees of WA DAA (46%) reported having experienced workplace bullying, a figure almost double that of the WA public sector (27%). Similarly, 38% of WA DAA employees reported having witnessed discrimination or harassment, in comparison to 16% of public employees. The Public Service Commission noted that these figures imply that “further work on workplace bullying strategies may be required.”

Dismissal Fair But Harsh for Qantas Flight Attendant who Stole Alcohol
Flight attendant, David Dawson made an application for a remedy for unfair dismissal (Dawson v Qantas Airways Limited [2016] FWC 8249) against his former employer Qantas Airways Limited. Mr Dawson was dismissed because a small amount of alcohol, the property of Qantas was found on him, in a random search of the crew following a flight from Perth to Sydney on 14 February 2016. Qantas dismissed Mr Dawson because they considered that he had breached the Standards of Conduct Policy by stealing Qantas property and giving a false explanation as to why he had the alcohol. The FWC accepted that this was a valid reason for dismissal. The FWC considered that with respect to Mr Dawson’s age, medical and family issues, length of service and the small value of items stolen, the dismissal was harsh. Qantas was ordered to pay Mr Dawson $33,731.

Dismissal for Answering Phone While Driving Fair but Harsh
Andreas Zang made an application for a remedy for unfair dismissal (Zang v Toll Transport Pty Ltd [2016] FWC 7952) against his former employer Toll Transport Pty Ltd. Mr Zang was dismissed on the basis that he answered a satellite phone while driving, conduct that breached three policies/procedures. This conduct was contrary to the first rule of the Toll Energy, Reasons to Live By document (always drive safely and to the law), the TE HSE P618 Mobile Phones and Audio Devices Policy and the Toll Group Code of Practice. In determining that there was a valid reason for dismissal, the FWC noted that “the policies of Toll are reasonable and compliance with the policies is important particularly given the nature of Mr Zang’s work and the public and personal risks associated with that work.” The FWC considered that “the importance of the safety rules and the potential consequences of a serious breach were also explained to Mr Zang by Toll through various avenues.” On this basis, the FWC concluded that there was a valid reason for dismissal. However, having consideration to all of the circumstances of the case including Mr Zang’s work history and his genuine contrition, the FWC concluded that the dismissal was harsh. The FWC ordered the reinstatement of Mr Zang.

Unfair Dismissal Valid but Unreasonable Because Employer Didn’t Follow Natural Justice
Paul Conciella made an application for relief from unfair dismissal (Conciella v Phillip W Hill & Associates Pty Ltd [2016] FWC 7906). Hunter Legal & Conveyancing, a small business employer, summarily dismissed Mr Conciella on 30 June 2016 on the basis that Mr Conciella had engaged in serious misconduct. It was alleged that Mr Conciella had threatened Ms McAllister, a co-worker, to “go legal” and “bring you all down” and made similar threats to another co-worker, Ms Bidner, causing serious and imminent risk to the reputation, viability and profitability of HLC’s business. It was further alleged that Mr Conciella acted in an intimidating and threatening way toward a number of HLC employees. The FWC was satisfied that this conduct gave HLC a sound, defensible and well-founded reason to dismiss Mr Conciella. Although the FWC considered that HLC had a valid reason to dismiss Mr Conciella, the Commission noted that the dismissal was unreasonable because HLC failed to afford Mr Conicella procedural fairness in relation to the procedures leading up to the decision to summarily dismiss him. The FWC ordered the payment of $10,375 compensation.

Dismissal Valid when Employee Swore and Threatened Supervisor
Darren Piera made an application for a remedy for unfair dismissal (Piera v Essential Energy [2016] FWC 8316) against his former employer Essential Energy. Mr Piera was dismissed following an investigation into an incident when he had an argument with his supervisor Mr Johnson. During this argument, Mr Piera told his supervisor to “f*** off”, referred to him as “computer illiterate” and yelled, “if you don’t go away I might knock your head off.” Essential Energy contended that this conduct breached the Essential Energy Code of Conduct, in particular, by demonstrating a failure to show respect for people and to act with integrity. The FWC concluded that Mr Piera’s substantial breaches of the Code of Conduct gave Essential Energy a sound, defensible and well founded reason to terminate his employment. The FWC concluded that Mr Piera’s dismissal was not harsh, unjust or unreasonable and dismissed the application.

Australia Post Manager Harassed by Union Boss
A senior Australia Post manager is on suicide watch stemming from alleged bullying and harassment by union boss Jim Metcher in a dispute over a workers’ compensation case.

The Communications, Electrical and Plumbing Union NSW secretary, is accused of making aggressive and demeaning phone calls to one of Post’s regional heads of compensation from February to June 2016, allegedly referring to her as a “useless f—ing c–t”. Other behaviours include sending excessive emails over a short period of time and making phone calls at different times of the night and day.

An investigation co-authored by former Australian Council of Trade Unions assistant secretary Tim Lyons said Mr Metcher’s conduct was “inappropriate” and had resulted in “significant negative personal impacts” to Australia Post staff.

Australia Post has now set down rules determining how Mr Metcher can communicate, verbally and in person, with its employees.