What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 30 May – 5 June 2016

Banning of Head Scarves in Europe

After three years of working for G4S, Samira Achbita decided to commence wearing a headscarf at work for religious reasons. G4S Belgium said a headscarf contravened company policy, at that time an unwritten rule. Mrs Achibita was fired in June 2006 for refusing to take off the scarf. The day after her dismissal G4S Belgium updated its code of conduct to ban “any visible signs of their political, philosophical or religious beliefs”. Mrs Achbita commenced a wrongful dismissal claim, which was referred to the European Court of Justice.

Julianne Kokott, an advocate general of the ECJ has given her opinion on the case suggesting there was no direct religious discrimination. Mrs Kokott stated that she did not believed there could be “less favourable treatment” where a Muslim employee is banned from wearing an Islamic headscarf, provided that that ban is founded on a general company rule of religious and political neutrality. In this instance, Mrs Kokotta believed that the G4S ban was an appropriate and proportional policy in line with the company’s objectives of religious and ideological neutrality. Mrs Kokott explained that while an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace. Mrs Kokkott noted that wearing of a headscarf should not be seen differently to an atheist who expresses an anti-religious stance through dress, an employee who wears items that display an allegiance to a political party, or an employee who wears a t-shirt with the slogan “Jesus is great.”

Although the advocate general’s opinion is not binding, the court’s judges often follow such pronouncements in their final ruling. The ECJ’s final ruling is expected within three to six months.

While this is not in Australia it is worthwhile to hear what is happening in Europe. It will be interesting to see what the court’s ruling is.

Another Employee Successfully Terminated for Inappropriate Behaviour
Mr Mark Sayers was terminated on the ground of serious misconduct, after allegations that he behaved in a manner that was in breach of the CUB Code of Conduct and Anti-Harassment, Bullying and Discrimination Policy (CUB Policy) by verbally and racially abusing and making threats of violence against other CUB employees. Mr Sayers made an unfair dismissal application to Fair Work Commission. The CUB policy outlines that employees have “the right to work in a professional atmosphere that promotes equal employment opportunities, prohibits discriminatory practices and is free from harassment and bullying.” It further states that if employees’ actions are in breach of the policy, they would face disciplinary action which may include instant dismissal.

The misconduct relied upon included allegations that Mr Sayers: said words to the effect “you are nothing but a dirty gringo c***”” to Mr Mansilla; made a threat of violence against Mr Mansilla by saying words to the effect: “Any place, any time, you name it you are going down. Wait until tomorrow and I’ll fix your red wagon”; and intimidated and threatened Mr Mansilla by saying words to the effect “I do whatever I fucking want in this company.” The Fair Work Commission found that this behaviour constituted a valid reason for dismissal. The dismissal was not held to be harsh, unjust or unreasonable.

The Employer had done the following things which positively influenced the Commission’s Decision, namely-
1. It had a Code of Conduct and an Anti-Harassment, Bullying and Discrimination Policy
2. In the Policy it stated that one of the options for CUB in relation to disciplinary action was instant dismissal
3. The General Manager delivered a presentation to CUB employees outlining the expectations in relation to their behaviour
4. The General Manager attempted to maintain the standard outlined, across the work site
5. The General Manager specifically met with Mr Sayers and talked with him about his previous swearing and that it was not appropriate
6. CUB terminated the employment of three other employees who had engaged in verbal abuse and/or the threat of harm to other employees

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