What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 3 – 9 October 2016

Poor Work Performance and Pornography not Enough to Warrant Dismissal
The FWC ordered a Port Macquarie insurance broking business to pay Allan Croft $10,000 in compensation. Smarter Insurance Brokers dismissed Mr Croft under “clause 21” of his contract of employment – a clause that provided that the employer may terminate the employment upon giving four weeks’ notice, or payment in lieu of notice. The FWC noted that “it appeared that the employer may have mistakenly believed that payment in lieu of notice in accordance with the terms of clause 21, somehow relieved it of any requirement to have substantive basis for the dismissal, and to provide the applicant with proper procedure.” The FWC examined the available evidence to determine whether a valid reason for dismissal existed.

The first issue considered was whether Mr Croft’s unsatisfactory performance established a valid reason for dismissal. The FWC considered that “in the absence of clear, documented warning about issues such as; delay with CPD training, contact with clients of previous employer via LinkedIn, direct contact with Ausure, late arrival for work, and extended lunch breaks; these matters could not represent valid reasons for dismissal.” The FWC notes that the “work performance and conduct issues could not represent sound and defensible basis for dismissal in the absence of any clear advice to the applicant that they were matters that potentially endangered his employment.”

The second issue considered was based upon evidence that Mr Croft accessed, downloaded and stored pornographic material on his work computer and work provided mobile phone. Mr Croft did not deny downloading such material but suggested that at the particular times he downloaded the material, he was on a lunch breach or outside of work hours and work premises. The FWC noted “ordinarily, the use of employer provided equipment to access, download and/or store hard core pornographic material would represent misconduct.” However, in this case, “there was no evidence that the employer had promulgated any particular policy regarding the use of its equipment being confined to work-related activities.” In these circumstances, the accessing, downloading and storage of pornographic material did not represent a valid reason for dismissal. The FWC concluded that the dismissal of Mr Croft was harsh, unjust and unreasonable.

The lesson to be learnt from this case is that if you are going to dismiss someone for poor work performance and/or pornography make sure you have clear policies and have documented previous warnings.

Young People Over-Represented as Victims of Bullying
A study has found that 50% of young people were experiencing some form of bullying or harassment on the job. A majority of workplace bullying and harassment (32%) originated from a customer/client. Eighteen per cent of respondents experienced bullying from a boss/supervisor or a co-worker.

BHP Termination of Employee Harsh
In the case of McDermott v BHP Coal Pty Ltd [2016] FWC 6935, FWC has ordered the reinstatement of Gary McDerrmott, after concluding that the termination of Mr McDermott’s employment was harsh. BHP Coal terminated Mr McDermott’s employment after 13 years of service due to two incidents. The first incident involved a breach of the Active Mining Procedure. This occurred when Mr McDermott allowed a light vehicle to enter the mining area before all equipment was de-energised. The second incident involved a verbal dispute. It was alleged that Mr McDermott said words to the effect of “you suck dick” to another employee, Mr Mansfield. Further, it was alleged that Mr McDermott said, “it doesn’t matter, the scabby bugger will come and jump on it anyway.” BHP considered that this conduct was “in breach of the BHP Billiton Charter Values of Respect, Integrity and Accountability and contrary to BHP’s expected standards of behaviour of its employees.” The Commission considered that this did not constitute a valid reason for dismissal. The FWC concluded that the termination of Mr McDermott’s employment was harsh and disproportionate, and therefore unjust and unreasonable.

Valid Reason for Redundancy-Age or Re-structure?
Jack Verdins is demanding $347,889 in compensation after being made redundant. Mr Verdins was employed with IBM for 36 years before receiving notice that a ‘restructure of the marketing and communications business was necessary and his position of senior portfolio marketing professional would no longer be required.’ Mr Verdins alleges that his age was a factor in the redundancy. Mr Verdins has lodged documents with the Federal Circuit Court seeking an enhanced redundancy payment of up to 104 weeks. The company will file its defence by 16 November 2016.