What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 29 January 2024 – 4 February 2024

Government to Introduce New Provision Which Give Workers a Right to Disconnect

The government is set to introduce a new workplace provision in the first sitting week of Parliament in 2024 which would allow workers to tell their boss to stop making unreasonable contact outside of work hours. Crossbenchers Senator Lambie and Senator Pocock have voiced their concerns with the measures in the remaining elements of the Closing Loopholes legislation. Additionally, the government has faced backlash from businesses over the proposed provisions. Bran Black, Business Council chief executive, demanded that the government consult on the proposed change (of which the details are confidential). Mr Black stated that “we are disappointed to see the government try to introduce the ‘Right to Disconnect’ amendment at the 11th hour with no consultation and no detail on what it will entail, and we fear it will be rammed through the parliament next week.” However, Tony Burke, Workplace Relations Minister, stated that “there are some workplaces where effectively people are working a whole lot of hours unpaid, because they’re expected to be permanently on call.” He said that “if it has got completely out of hand of a worker being expected to do unpaid work, they’d be able to go to the [Fair Work] Commission [to] get a stop order.” Lastly, he said that “if the stop order was breached, only then would there be a situation of fines.”

Union Calls for Bullies at Bunbury Prison to be Held Accountable After Hundreds of Thousands of Dollars Paid to Settle Compensation Claims

The Western Australian Prison Officers’ Union has called for bullies at Bunbury Prison to be held accountable after it was revealed that taxpayers had paid hundreds of thousands of dollars to settle compensation claims. The Department of Justice had paid a total of $770,000 to staff who had complained of a “psychological injury” in the last financial year, including six payments of between $65,000 and $165,000. The secretary of the union, Andy Smith, said that the payments were made or offered without the Department of Justice accepting liability. Mr Smith said that the perpetrators were superintendents and members of the senior management team. He stated that many victims quitted while their bullies remained employed or were promoted. Further, he said that “bullying and sexual harassment is unacceptable at any workplace, and prisons are no different.” Mr Smith stated that “when incidents do occur, the complaints system should be clear and it should result in a thorough investigation.” He continued by saying “the fact that the Department of Justice has not followed this process and removed perpetrators is beyond disappointing.” Lastly, he stated that “prison officers already have a high-risk job working with Western Australia’s most dangerous people. They deserve to be better protected by management and by the Department.”

WorkSafe New South Wales (NSW) Accused of Suffering from Systemic Cultural and Operational Issues

The internal workings of WorkSafe NSW have been revealed in a series of submissions, yet to be released to the public, to the retired NSW Supreme Court judge Robert McDougall. McDougall was commissioned by the former state government to undertake a review and release a report by the end of 2023. The submissions have shown dozens of regulatory failures in various industries in New South Wales (such as construction and healthcare). The report, and its recommendations, are expected to be released within weeks. Ahead of the launch of the inquiry, it was alleged that bullying had occurred at the regulator and that it was not fit for purpose. Further, staff at WorkSafe NSW were encouraged to “shut up, see nothing, do nothing.” Instead of addressing the claims raised in parliament, the regulator highlighted what it was doing well and underplayed or ignored some of the issues. However, it did concede that it has room for improvement in relation to employee engagement, as well as its management of claims of workplace bullying.

Scientist Fired After Secretly Working from Overseas for Multiple Weeks, Claims Unfairly Dismissed

The Fair Work Commission recently dealt with a case where a scientist was dismissed by the Bureau of Meteorology after he was caught secretly working from overseas for multiple weeks. Mr Ren had travelled from Melbourne to the United States for a holiday for four weeks between August and September 2022. Nine days after he returned back to work, Mr Ren’s manager realised that he had not been coming into the office and was not online. Mr Ren claimed that he was working from home, however his employer tracked his IP address and found it was located in Austin, Texas. Mr Ren attempted to say that he had left his computer in the United States but failed to provide evidence of his travel back to Australia. Mr Ren lodged an unfair dismissal application and claimed that his dismissal was unfair, unjust or unreasonable. The employer denied the accusations and stated that Mr Ren had lied to his managers about his location, as well as potentially breached security risks. The Fair Work Commission found in favour of the employer, stating that dismissal of Mr Ren “was not hard, unjust or unreasonable” and decided that he was not unfairly dismissed.

Court Hears Walter Sofronoff had Ongoing Contact with Journalists During Inquiry into Bruce Lehrmann’s Prosecution

A court has heard that Mr Walter Sofronoff, head of the inquiry into former Liberal staffer Bruce Lehrmann, had made 65 phone calls to journalists between February and July last year. Mr Lehrmann’s trial into the alleged rape of his former colleague Brittany Higgins was abandoned due to juror misconduct. No findings have been made against Mr Lehrmann. An inquiry was held into Mr Lehrmann’s prosecution after a letter sent from Shane Drumgold to the ACT’s chief police officer was released under freedom of information laws. Mr Drumgold has challenged the inquiry’s findings, where a report handed down by Mr Sofronoff said that Mr Drumgold generated “scandalous” and “wholly false” allegations about the police. The report found that Mr Drumgold “knowingly lied to the chief justice” by claiming a note about a conversation with journalist Lisa Wilkinson was written “contemporaneously” by his instructing solicitor. Mr Drumgold resigned from his position as ACT director of public prosecutions while the report was being handed down. Mr Drumgold’s lawyer, Dan O’Gorman, stated in court on Wednesday that 55 of the calls made by Mr Sofronoff had been to The Australian newspaper, mostly to journalist Janet Albrechtsen. Mr O’Gorman said that “in the months leading up to the inquiry… Mr Albrechtsen was writing numerous articles critical of Mr Drumgold.” In 2023, the ACT government raised concerns about the legality of Mr Sofronoff’s actions in providing the report to media outlets. However, Justice Stephen Kaye said that there would be no potential cross-examination of Mr Sofronoff. Further, Justice Kaye stated that “this is not an inquiry into the inquiry, it is a specific judicial inquiry.” The case is set to be heard over three days this month.

Worker Claims Discrimination after Failing to Receive COVID-19 Vaccine

In this case, the Queensland Industrial Relations Commission dealt with a claim from a worker who alleged that he was unfairly dismissed after he had failed to comply with his employer’s COVID-19 vaccination requirement. The worker said he had a valid “impairment” for refusing the vaccination since he experienced “severe adverse side effects” from previous injections. He argued that his termination was based on a health condition which amounted to a violation of the state’s discrimination laws. In its decision, the Commission stated that Mr Triplow had made “no clear identification of the ‘impairment’ he purports to have, and which (he says) formed the basis for less favourable treatment.” Further, it said that “at best, it appears Triplow asserts that a historic event (which he describes as a seizure) following a flu vaccination in or about 2010 was a medical contraindication to him having a COVID-19 vaccine in 2021.” The Commission stated that “Triplow’s complaint is that the termination of his employment is the alleged ‘less favourable treatment’, and it was ‘on the basis of’ his non-compliance with the direction (which was due to his ‘impairment’). Triplow must prove each of these elements to the requisite standard.” Therefore, the Commission ruled in favour of the employer and said that he was not discriminated against on an “unfounded” impairment.

NSW Liberals Propose Weakening Unfair Dismissal Protections under Industrial Relations Platform

The New South Wales Liberals are set to approve an industrial relations policy to weaken unfair dismissal protections. The policy, which is to be considered at the state council annual general meeting in late February, is likely to generate a hostile reaction from unions by reducing worker protections. The new framework has accepted the need for protections of lower paid and lower skilled workers but argued that labour market regulation “should be kept to a minimum” due to “economic and social costs” and “unintended consequences.” The policy has called to simplify unfair dismissal laws, stating that employees are allowed to win cases due to a lack of procedural fairness and the “harshness” of dismissal, “even though the reason for the dismissal was sound.” The policy framework read that the act should be amended “so that the only question to be determined in cases of misconduct would be whether the employer had a valid reason for the dismissal.” The Fair Work Commission would consider “whether the misconduct occurred” and whether the dismissal was justified. Further, “procedural fairness considerations would only be applicable in relation to performance-based dismissals.”

Submissions State Bruce Lehrmann Gave ‘No Remotely Credible’ Account of Night of Alleged Assault

Network Ten has submitted to the Federal Court that Bruce Lehrmann acted “audaciously” in bringing his defamation suit against the broadcaster and provided “no remotely credible account” of the night Brittany Higgins alleged she was raped by him in Parliament House. Justice Michael Lee reserved his decision in the defamation case during December after a month-long trial. On Friday this week, the Court released written submissions filed by the parties after the conclusion of the trial. Network Ten alleged that Mr Lehrmann acted “audaciously” in “bringing defamation proceedings in which he seeks damages to vindicate his reputation, in circumstances where he has given no remotely credible account of his conduct in respect of the events underlying the imputations he has sued upon and has been prepared to launch a scandalous attack on an obviously honest and independent witness.” Lawyers for Mr Lehrmann stated that “if the court finds Mr Lehrmann’s account implausible, that would not make Ms Higgins’s versions of events more persuasive in its own right.”