What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 30 January – 5 February 2017

Metro Trains Leaked Report Suggests Bullying and Harassment Issues
A series of leaked emails have detailed the existence of workplace bullying, gender discrimination and harassment at Metro Trains. The substance of these emails appears to be drawn from an investigation carried out by former senior police detective Val Smith into allegations of harassment and gender discrimination. The findings of this investigation and the report that was produced have been supressed.

The emails detail a number of incidents of bullying and harassment that were allegedly detailed in the report. These include a campaign of intimidation against a manager, whereby train drivers would blast their train horns as they passed his house late at night. It is also alleged that a male trainer urinated in the presence of a female trainee driver while he was assessing her competency. The female trainee failed her assessment, and was dismissed. Other incidents included inappropriate comments of a sexual nature being directed at female employees and comments being made “to the effect that females were only being employed to make up numbers”.

Dr Liebenberg, the Director of People and Performance at Metro Trains stated that “some of the conduct identified might be described as demonstrating that a small number of employees have lost their moral compass and seem to be able to justify to themselves treatment of other employees in quite abhorrent ways which is unacceptable to Metro and we would have thought would be unacceptable to the RTBU”. Dr Liebenberg said that Metro would take action to eliminate bullying and discrimination through education and training and by working with an anti-bullying and harassment organisation.

Qantas Flight Attendant’s Lying to Cover up Stealing Valid Reason for Dismissal
Flight attendant, David Dawson made an application for a remedy for unfair dismissal (in the case of
Qantas Airways Limited v Dawson [2017] FWCFB 41) 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.

At first instance, 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.

The Full Board of the Fair Work Commission held that the Deputy President failed to take into account a material consideration, namely the dishonesty of Mr Dawson, when determining whether the dismissal was harsh, unjust or unreasonable. The appeal was upheld and the decision was quashed.

Employee Dismissal Unfair Because Manager Didn’t Showing Procedural Fairness
Michael Ramsey applied for an unfair dismissal remedy (in the case of Ramsey v Trustee for the Roman Catholic Church for the Diocese of Parramatta [2017] FWC 223) in respect of his summary dismissal from his employment as an IT Project Manager in CatholicCare Social Services. Mr Ramsey was terminated following an incident where it was alleged that he physically shoved Ms Rashada, the Manager of People & Culture.

Before this particular incident, a number of issues had arisen which involved Mr Ramsey. These included the disconnection of the NBN service (as a result of administrative errors on documents overseen by Mr Ramsey) and a significant virus attack upon the CatholicCare networks. Mr Ramsey had also taken a period off work after aggravating a neck/back injury that he had sustained during the course of employment in 2013.

On 27 April at 1:00pm, Mr Ramsey attended the Chancery Office for his scheduled performance review meeting. Ms Rashada, the Manager of People & Culture directed Mr Ramsey to sit down and told him that she would return later. At 4:45pm Mr Ramsey was informed that Ms Rashada was unable to attend the meeting and the meeting was rescheduled. On 29 April 2016, Mr Ramsey attended the Chancery Office for the rescheduled meeting but was told 4 hours later that it was too late for the meeting to be held and it would have to be rescheduled again.

On 2 May 2016, the performance review meeting finally proceeded with Mr Ramsey, Mr Netana (IT Manager), Ms Rashada and Mr Makdessi (HR Manager) in attendance. At this meeting three issues were raised – Mr Ramsey’s neck injury, the administrative error that resulted in the disconnection of the NBN Service and the virus attack on the CatholicCare networks. The outcome of this meeting was that Mr Ramsey was to receive his first warning letter and was required to attend for work at the Chancery Office at Parramatta in the future.

On 6 May 2016, Mr Ramsey received two warning letters. The first warning letter referred to the 2 May meeting. The letter stated that his performance as the CCSS IT Manager had been unsatisfactory, and that immediate improvement was required. The letter stated that Mr Ramsey’s performance would be supported through a formal performance management process. The second letter referred to Mr Ramsey’s delay in attending the Chancery Office on 4 May 2016. Mr Ramsey had been delayed on this day as he had been requested to assist with a matter in another office. The second letter stated, “failure to improve your attendance to the required standard may result in further disciplinary action or termination of your employment.” On 6 May 2016, Mr Ramsey was also asked by Mr Netana to sign a performance improvement plan. When Mr Ramsey declined to sign it, Mr Netana told him to take it home and think about it over the weekend.

On 9 May 2016, Mr Ramsey attended for work at the Chancery Office at Parramatta. At about 10.30am a conversation occurred between Mr Netana, Ms Rashada and Mr Ramsey concerning the performance improvement plan. Mr Ramsey persisted in his refusal to sign or engage with the contents of the performance improvement plan. Mr Netana left the room to attend to another matter. Ms Rashada claimed that during the time Mr Netana was absent, the discussion between Mr Ramsey and herself became heated, resulting in Mr Ramsey physically shoving her.

In considering whether Mr Ramsey physically shoved Ms Rashada, Vice President Hatcher noted that he could not be satisfied with the evidence of Ms Rashada, as he did not consider her to be a credible witness. Accordingly, VP Hatcher held that he could not make a positive finding that Mr Ramsey pushed Ms Rashada as a number of possibilities were open in the circumstances.

As VP Hatcher was not satisfied that Mr Ramsey pushed Ms Rashada, he concluded that there was no valid reason for dismissing Mr Ramsey. Further, VP Hatcher noted that Mr Ramsey was denied procedural fairness and was dismissed by a person lacking both impartiality and authority. The FWC determined that the dismissal of Mr Ramsey was harsh, unjust and unreasonable. The FWC ordered the Trustee for the Roman Catholic Church for the Diocese of Parramatta to pay Mr Ramsey $40,977.30 in compensation.

Toll Employee Seeking Compensation for Taliban Comments and Subsequent Isolation
Mohd Younas Karzi is seeking compensation from Toll Holdings in relation to two injuries that he suffered on the job. In 2015 Mr Karzi was involved in an incident with his co-worker, Mr Johnpulle. Mr Johnpulle made inappropriate comments regarding Mr Karzi’s religion and ethnicity. In doing so, Mr Johnpulle “implied that Mr Karzi would have some knowledge or would have some sympathy with the activities of the Taliban.” Mr Johnpulle’s employment was terminated a month later.

After Mr Johnpulle’s termination, Mr Karzi was asked to work in a sectioned off area. This was done to protect Mr Karzi as a number of union members had protested Mr Johnpulle’s termination and remained dissatisfied. Mr Karzi claims that for six months he was unable to step outside of the small confined area, or to talk to other workers. Mr Karzi resigned from Toll Holdings in late 2015.

Following a series of Fair Work Commission decisions, Mr Johnpulle was reinstated in 2016. The FWC determined that the decision to terminate Mr Johnpulle was “harsh for the personal consequences of it for him and because of the severity of the punishment when little has been done with respect to his past behaviours.” Mr Johnpulle had made similar comments on three occasions without being subject to any formal disciplinary process. The FWC found that considering the absence of earlier sanctions with regard to Mr Johnpulle’s conduct, the decision to terminate his employment was severe.

Despite finding that Mr Johnpulle had been unfairly dismissed, the FWC noted that Mr Johnpulle had engaged in behaviour that was unacceptable and disrespectful within the modern workplace. The FWC stated that the evidence suggested “there is either a lack of awareness by Mr Johnpulle of appropriate workplace conduct or a disdain of the need to treat others at work with respect and to be sensitive to cultural, religious and ethnic backgrounds.” Further Commissioner Bissett warned that Mr Johnpulle “should not feel vindicated by my decision” as employees that displayed such conduct “must be called out”.

Mr Karzi is seeking compensation from Toll Holdings in relation to psychological injury and a back injury from lifting heavy boxes.