What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination, and Bullying from 29 April 2024 to 05 May 2024.

One in seven people admit to using technology to sexually harass colleagues at work

New data from Australia’s National Research Organisation for Women’s Safety (ANROWS) has revealed that one in seven people are using tech platforms to sexually harass their colleagues.

More than 3,000 people across the country were surveyed, with men more than three times more likely to harass their colleagues using work email, social media, and text. Perpetrators frequently admitted to doing this to humiliate and frighten their targets, rather than to engage in a sexual relationship with them. Young people and women were particularly at risk of this kind of harassment, with work and personal emails and phones most used by perpetrators. 

According to the Australian Bureau of Statistics, 26% of women who experienced sexual harassment did so at work, with 57% subjected to it electronically.

Reducing sexual harassment in the workplace is a key element of the national plan to end violence against women and their children. The government’s plan aims to end it within a generation but has not specified a more detailed timeline for when targets need to be met. 

How employers can prepare for workplace laws coming in August 

New regulations which are effective from August 26 this year further determine whether someone is a contractor compared to an employee. The change comes as part of the second tranche of the Fair Work Legislation Amendment (Closing Loopholes Nº 2) Bill 2023.

The importance of this Bill is to determine whether someone is genuinely employed as a contractor. If a person engaged to provide services doesn’t have to do so personally but could employ someone to provide the services or subcontract it to someone else, and if the contract enables that to happen, then that person is a contractor rather than an employee. There are financial risks for employers if a person makes a claim in court and was found to have been an employee, instead of a contractor.

Preparing for the ‘Right to Disconnect’ 

Employees will soon have the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of working hours – unless that refusal is unreasonable. This right extends to contact from other employees, suppliers, clients or other third parties if the contact relates to the employee’s work. The right applies to all forms of contact including, for example, phone calls, emails, text messages and Teams messages. 

This right to disconnect is effective from 26 August 2024 for many Australian workplaces. For small businesses, the new laws will commence on 26 August 2025. The new laws do not mean that all employees will have a blanket right to “disconnect” from any contact outside their working hours. The critical question is whether the employee’s action to refuse to monitor or respond to contact is unreasonable. Determining whether an employee’s refusal is unreasonable will need to be assessed on a case-by-case basis and must consider several factors, including: 

  • The reason for the contact or attempted contact
  • How the contact is made and the level of disruption it causes for the employee
  • The extent to which the employee is compensated to remain available or perform work in addition to their working hours – including non-monetary compensation such as additional leave, flexible work arrangements or other rewards
  • The nature of the employee’s role and responsibilities
  • The employee’s personal circumstances, including any family or caring responsibilities.

If contact is required under a law of the Commonwealth, State or Territory, it will be unreasonable for an employee to refuse contact. Otherwise, there must be an assessment of the unreasonableness of the employee’s refusal to determine whether they can lawfully “disconnect.” Importantly, the new laws do not mean that employers cannot contact an employee outside of their working hours – or that they will be acting unlawfully by doing so – rather, there is now to be a determination about whether an employee’s refusal is unreasonable or not. Here are some key factors that might help to comply with the new rule: 

  • Review any current practice of employees’ work activities outside of ordinary working hours and consider if changes are required.
  • Review employment contracts to determine whether they require updating and review existing flexibility arrangements to ensure that they are current.
  • Prepare or amend policies regarding the use of work technology outside ordinary working hours.
  • Audit position descriptions to ensure they clearly reflect expectations regarding outside hours contact.
  • Conduct training for managers and employees to ensure understanding of the expectations in the workplace and the new right and to promote wellbeing of employees and minimise the risk of adverse action claims.
  • Communicate with third parties (such as clients or suppliers) regarding expectations about responses from employees out of hours.

Labor MP Darren Cheeseman resigns over ‘inappropriate behaviour in the workplace’ 

Victorian Labor MP Darren Cheeseman has resigned as Parliamentary Secretary for Education over allegations of “persistent, inappropriate behaviour in the workplace towards staff”. Premier Jacinta Allan confirmed in a statement that she had sought Cheeseman’s resignation.

Cheeseman has served as the member for South Barwon since 2018. The Premier said Cheeseman had agreed to resign but would remain a member of parliament and a member of the parliamentary Labor Party. 

Rebel Sport’s Owner Denies $50m Bullying Claim, Undisclosed CEO Relationship 

The board of Rebel Sport owner, Super Retail Group, has denied bombshell allegations of an undisclosed relationship involving its chief executive, Anthony Heraghty, and bullying claims that are expected to form the basis of a $50 million lawsuit. An investigation will reveal out who is telling the truth. 

New CALD Employment Strategy and Action Plan 

The Australian Public Service Commission (APSC) published the Culturally and Linguistically Diverse (CALD) Employment Strategy and Action Plan on 30 April 2024.  While the APS broadly reflects the cultural and racial diversity in Australia, representation drops sharply at senior levels. CALD APS employees report higher levels of discrimination and racism. 

The APSC consulted widely with multiple stakeholders, including APS employees and external organisations, to understand the workplace experience for Australians from CALD backgrounds in the APS. In late 2023, the APSC circulated these results and a toolkit of proposed actions for public consultation. The Strategy draws from the insights gained from the consultation process and proposes key actionable items for APS agencies to follow and implement. The overall objectives of the Strategy are that the APS: 

  • Ensures a safe, fair, equitable and inclusive workplace that is free from racism, discrimination, bullying and harassment.
  • Understands and builds on the diversity of the current workforce.
  • Enables people to make a full contribution and empowers them to fulfil their potential.
  • Creates a level playing field and a fair go for all APS employees.
  • Builds representation of CALD employees at senior levels.

Commissioner apologises after border force review finds widespread sexual harassment and discrimination among marine ranks

Australian Border Force (ABF) Commissioner Michael Outram has apologised to female staff within its marine unit, after a review found widespread sexual harassment and discrimination within it. 

A workplace review of the marine unit has found harassment and discrimination are so widespread, “immediate intervention” is needed to make it safe for the women working there. A survey of staff within the unit found every woman surveyed had witnessed sexual harassment or discrimination, and nearly all had experienced it directly.  

The Australian Human Rights Commission was tasked with looking into the unit as part of a five-year long project investigating workplace culture across the ABF. A summary of a review into the ABF’s marine unit, which has not been released publicly but obtained by the ABC, found a “significantly high prevalence” of inappropriate behaviour. 

The report placed the burden of responsibility for change directly on the ABF’s leadership at all levels — from officers in command on vessels, through to the top of the force. It said ABF leadership should be held directly accountable for cultural problems, calling for “defined consequences” for leadership failures. 

Worker dismissed after responding to criticism of his performance 

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed he was unfairly dismissed from his employment. 

The employer’s managing director dismissed the worker after the former’s subordinates reported that the latter quit during a meeting to discuss his performance. They also described him as “agitated” and “emotional”. The worker argued that his employment was terminated at the initiative of his employer, while the company maintained that the worker had resigned from his position. The worker was employed by the company as a warehouse and freight handler from June 2023 until January 2024. 

On January 25, 2024, the worker attended a meeting with his managers to review his performance. During the meeting, the worker became increasingly agitated, raising his voice and expressing his frustration. According to records, it was during this moment that the worker said words to the effect of “I don’t want to work at [the company] anyway” and “I don’t want to work with these conditions.” The managers present at the meeting described the worker’s manner as “aggression, anger,” “frustrated and annoyed,” and “defensive, angry.” The meeting ended shortly after, leaving the managers with the impression that the worker no longer cared about the business. 

After considering the evidence presented, the FWC found that the worker was terminated on January 25, 2024, at the initiative of the employer. The Commission noted that the worker’s statements during the meeting were made in an “agitated emotional state” and did not clearly convey an intent to end the employment relationship. “It is clear on the facts that when [the worker] uttered these words, or words to that effect, he was in an agitated emotional state. He was responding to criticism of his performance and expressing his frustration at the conditions he found himself in the meeting, of which he had only had short notice.”  

The FWC emphasized that the action that terminated the employment relationship was the text message from the managing director on January 25, 2024, which set out the reasons for ending the employment, including the worker’s conduct during the meeting and the company’s ongoing concerns about his performance. Consequently, the FWC found that the worker was dismissed by the employer on January 25, 2024, with the dismissal taking effect on January 29, 2024. It also said that the jurisdictional objection raised by the employer was dismissed, and the matter will proceed to further programming. 

Worker claims dismissal after she expressed her desire to return to work in circumstances where she was safe

The FWC recently dealt with a dismissal dispute under the general protections provisions of the Fair Work Act 2009. The case involved a worker who claimed that she was dismissed by her employer, Sunraysia Mallee Ethnic Communities Council Inc (SMECC), in contravention of the Act. The FWC had to determine whether the worker’s employment was terminated on the employer’s initiative, constituting a dismissal under section 386(1)(a) of the Act. 

The case presented a complex situation where the worker, who had been suspended pending an investigation, was directed to return to work but did not do so. The worker’s actions raised questions about whether her conduct amounted to a repudiation of her employment contract, and if so, whether this meant that her employment had already ended before the employer issued a termination letter. 

In August 2023, the employer suspended the worker and launched an investigation into her conduct. The suspension came after the worker sought advice about mandatorily reporting information provided to her by a client, which led the employer to believe that misconduct may have occurred. The investigation concluded in October 2023, with the employer deciding to give the worker a warning and requiring her to attend compulsory counselling sessions and training. The employer lifted the worker´s suspension and directed her to return to work. 

The worker, through her solicitors, disputed the investigation’s outcome and raised a complaint of bullying and harassment against the employer’s Chief Executive Officer. The worker expressed her desire to return to work “in circumstances where she feels safe to do so” and requested a return-to-work safety plan. Despite the employer providing a return-to-work plan and multiple directives to return to work, the worker did not do so. The worker’s solicitors sent a letter to the employer, stating: “Our client requires that any findings of alleged breach of her employment Contract and or SMECC’s Confidentiality policy(s) be retracted. If SMECC agree to this course of action, [the worker] is willing to resume her role immediately, providing that SMECC either get external advice and or detail a RTW Safety Plan that ensures [the worker] is returning to a safe workplace, free from any psychological hazards in accordance with the provisions of the OS&H Act.” 

According to the FWC, this statement from the worker’s solicitors indicated that the worker was willing to return to work, but only if certain conditions were met. The worker’s position was that she required the employer to retract the findings against her and provide a safe working environment before she could resume her duties.  

On November 20, 2023, the employer sent a letter to the worker, terminating her employment effective immediately. The letter stated that the worker’s refusal to follow lawful and reasonable instructions to return to work constituted “wilful and deliberate behaviour which is inconsistent with the continuation of [her] employment.” The employer argued that the worker’s conduct amounted to a repudiation of her employment contract, ending the employment relationship. The employer claimed that the termination letter merely accepted this repudiation and did not constitute a dismissal on the employer’s initiative. 

The FWC had to consider the arguments put forth by both parties and determine whether the worker’s employment was terminated on the employer’s initiative, as per section 386(1)(a) of the Act. The employer relied on the decision in Qureshi v Spotless Services Australia Limited, where it was found that an employee’s repudiatory conduct ended the employment relationship, and the employer’s acceptance of the repudiation did not constitute a dismissal. However, the FWC distinguished the current case from Qureshi, noting that the worker in this case, through her solicitors, was in regular communication with the employer and repeatedly stated her desire to return to work, albeit subject to conditions. This contrasted with the applicant in Qureshi, who made no contact at all with his employer. The FWC referred to the Full Court of the Federal Court decision in Mahony v White, which affirmed the interpretation of “termination at the initiative of the employer” from the case of Mohazab v Dick Smith Electronics Pty Ltd (No 2). 

In conclusion, the FWC found that the employer’s termination letter on November 20, 2023, brought the worker’s employment to an end, and this constituted a dismissal within the meaning of section 386(1)(a) of the Fair Work Act 2009.