What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 29 May–4 June 2017?

Pattern of Unacceptable Behaviour by Salvation Army Employee Valid Reason for Dismissal
Mauricio Nakasone applied for an unfair dismissal remedy in respect of the termination of his employment by the Salvation Army (in the case of Nakasone v Salvation Army [2017] FWC 2182). Mr Nakasone was employed as an Operations Assistant to the Director of Operations until the termination of his employment in November 2016. Mr Nakasone was terminated as a result of his conduct on three separate occasions.

In March 2016, Mr Nakasone was involved in an altercation with a work colleague where it was alleged that Mr Nakasone had engaged in bullying behaviour by yelling and slamming the door on his colleague in the bathroom. It was further alleged that Mr Nakasone had ignored and alienated this colleague over the course of three years. At a disciplinary meeting called to discuss these allegations, Mr Nakasone admitted that these allegations were true and agreed to take part in management training and mentoring.

In October 2016, Mr Nakasone was involved in another altercation with a different work colleague, Mr Lopes. Following this altercation, Mr Nakasone was advised that an investigation into his conduct was underway, and he was directed not to speak to Mr Lopes at all about personal or work matters until the conclusion of the investigation. Despite this direction, Mr Nakasone approached Mr Lopes and tried to initiate a number of arguments with him.

In November 2016, the Salvation Army arranged a meeting with Mr Nakasone to advise him of the results of the investigation. Prior to the meeting, the Salvation Army intended to issue Mr Nakasone with a second and final warning, however, after hearing that Mr Nakasone had confronted Mr Lopes the day before (in breach of the direction that he had been given) the Salvation Army decided to terminate Mr Nakasone’s employment.

The Fair Work Commission considered that the pattern of unacceptable conduct of Mr Nakasone provided the Salvation Army with a valid reason to terminate his employment on the grounds of serious misconduct. The FWC determined that Mr Nakasone’s dismissal was not harsh, unjust or unreasonable.

One-off Racial Slur Overheard by Others not Valid Grounds for Dismissal
The Fair Work Commission has determined that an employee of Chevron Australia Pty Ltd who was terminated for making a racist slur was unfairly dismissed. Robert Solin was employed as a Production Technician at the Gorgon Liquefied Natural Gas Project. In September 2016, Mr Solin was on a bus that was transporting workers from the accommodation camp to the Operations Centre Building. During the course of the bus ride, Mr Solin engaged in conversation with other workers, which was offensive. In this conversation, Mr Solin used the racial slur ‘gin’ which is a word that is used to refer to an Aboriginal woman in a derogatory manner. At the time of the incident there were two workers of Aboriginal heritage on the bus. A formal written complaint was made in relation to this incident. Following an investigation into the incident, Mr Solin was informed that the decision had been made to terminate his employment with immediate effect.

The Fair Work Commission held that Mr Solin’s conduct – the making of a racially discriminatory comment or alternatively, being involved in a conversation where racially or sexually offensive statements were made that were overheard by other employees – was contrary to Chevron’s Discrimination policy. This provided Chevron with a valid reason to terminate Mr Solin’s employment. However, upon considering the broader circumstances of the case, the FWC concluded that Mr Solin’s dismissal was both harsh and unreasonable. In making this finding, the FWC noted that the incident involved Mr Solin making one racially based comment in a conversation that was intended to be private and was only inadvertently overheard by other employees. Further, the FWC noted that there was some debate over whether the term ‘gin’ is necessarily a derogative term. The FWC also noted that Mr Solin had demonstrated that he was genuinely apologetic for having caused upset to other employees and had gone to some lengths to apologise for his behaviour. Other than this incident, Mr Solin had an unblemished employment record. The FWC made an order reinstating Mr Solin to his employment. However, the FWC did not make an order for lost remuneration stating that Mr Solin failed to comply with Chevron policies and must “bear some responsibility for the financial consequences he has suffered as a result of his dismissal.”

Bullying Allegation Against AOC Employee Cleared
Australian Olympic Committee (AOC) Media Director Mike Tancred has been cleared of bullying Former AOC chief executive Fiona de Jong. In April 2017, Mr Tancred was stood down pending an investigation into allegations that he engaged in bullying conduct on 12 separate occasions. The investigation, carried out by Ian Callinan, Susan Crennan and Greg James concluded Mr Tancred’s conduct with respect to Ms De Jong did not constitute bullying, as it “was not repetitive conduct.” However, Mr Tancred will receive a reprimand for his conduct. Other allegations made against Mr Tancred are still under investigation.

Hair Dresser Salon Liable for Sexual Harassment by Employee
Arthur Kordas, a male hairdressing trainee, has been awarded $30,000 after the NSW Civil and Administrative Tribunal found that Mr Kordas had been sexually harassed and victimised during the course of his apprenticeship. During the three months that Mr Kordas spent at Aztec Hair and Beauty, he complained to his boss, Mr Rony, about the treatment that he received, referring to it as sexual harassment. Mr Rony did not take any action in relation to Mr Kordas’ concerns. Mr Kordas’ employment was terminated in February 2015.

The NSWCAT found that Mr Kordas was sexually harassed by his colleague, Mr Eaton, and his boss, Mr Rony. In relation to the claim against Mr Eaton, the NSWCAT identified a number of incidents of Mr Kordas being subjected to unwelcome conduct of a sexual nature. This conduct included Mr Eaton placing his arm around Mr Kordas’ waist from behind, Mr Eaton slapping Mr Kordas on the bottom with a ruler and then asking him to reciprocate and Mr Eaton referring to Mr Kordas as “[his] b****”.” The NSWCAT held that Mr Eaton’s conduct was unwelcome conduct of a sexual nature and that; a reasonable person would have anticipated that Mr Kordas would have been humiliated or intimated by Mr Eaton’s conduct. In relation to the claim against Mr Eaton, the NSWCAT held that Mr Rony had sexually harassed Mr Kordas when he stoked his palm as he gave Mr Koras money to make purchases for the salon.

Further, the NSWCAT held Mr Kordas had been victimised on the basis of the complaints that he made about sexual harassment. The NSWCAT accepted that Mr Kordas was terminated as a result of him complaining to Mr Rony about the conduct that he was subjected to in the salon. The finding of victimisation was reached after the tribunal considered a number of facts including: the lack of training provided to Mr Kordas in relation to policies and practices about sexual harassment and statements made by a staff member and Mr Rony that Mr Kordas should just put up with the bullying behaviour that was occurring in the workplace.

The NSWCAT found Aztec Hair and Beauty to be vicariously liable in relation to actions of Mr Rony and Mr Eaton in sexually harassing Mr Kordas and further, in relation to the actions of Mr Rony in terminating Mr Kordas’ employment as an act of victimisation.

RUOK Research

Research undertaken by RUOK and ICARE has suggested that measures could be taken to address psychological safety in the workplace. The results indicated that younger workers found it more difficult to ask for help from colleagues. Further, 36% of workers aged 25-34 were concerned about making a mistake at work. By way of contrast, only 12% of workers aged 45 and above were concerned about making a mistake at work. The results also indicated that workers were twice as likely to consider that their workplace was ‘psychologically safe’ if they were earning a higher salary.

Unfair Dismissal not Valid Because Employer didn’t Conduct Appropriate Investigation
Mrs Nicole Webb and Ms Lauren Webb applied for unfair dismissal remedies in relation to the termination of their employment from the Salisbury Day Surgery (in in the cases of Webb v The Trustee for SWC Unit Trust [2017] FWC 2572; Webb v The Trustee for SWC Unit Trust [2017] FWC 2573) Nicole and Lauren were summarily dismissed from their respective positions in November 2016 after it was alleged that Nicole and Lauren had engaged in bullying conduct against two other employees and incorrectly recorded the hours that they had worked.

In this case, the FWC held that the Respondent had “failed to demonstrate that it conducted sufficient investigations into the bullying allegations, with the other employees, prior to the dismissal.” On this basis, the FWC determined that the allegations of bullying relied upon the Respondent did not provide a valid reason for the dismissal of Nicole or Lauren. However, the FWC found that the inaccuracies in the recording of time and wages did provide the Respondent with a valid reason to dismiss Nicole and Lauren. Although the Respondent had a valid reason to dismiss Nicole and Lauren, there were several identifiable procedural flaws in the investigation and termination of the two employees. Accordingly, the FWC concluded that the dismissal of Nicole and Lauren was harsh, unjust and unreasonable.