What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 30 May – 5 June 2022

High Court finds employer failed to enforce a safe system of work

The High Court recently decided in Kozarov v Victoria (Kozarov)1 that some work, by its very nature, puts an employer on notice that an employee may suffer a psychiatric injury as a result of performing the work.
Being on notice of such risks results in an employer being duty-bound to protect an employee’s mental health.2 The duty requires the employer to take reasonable steps to manage the work allocated to employees (which may require the employer to stop allocating particular work to an employee and/or rotate the employee out of a team).
In Kozarov, the High Court accepted that the employee’s work was “inherently and obviously dangerous” to her psychological health: the employee was responsible for prosecuting serious sexual offences for the Office of the Director of Public Prosecutions. The nature of this work put her employer on notice that she could suffer a psychiatric injury from doing the work.

Where a duty exists, the High Court stated that an employer must use its powers as an employer to enforce a safe system of work. This requires an employer to do “almost everything” to minimise the risk of a psychiatric injury.4
In Kozarov, the employer breached the duty by failing to:

• train staff about the cumulative impacts of vicarious trauma and how to identify “red flags”
• enquire into Ms Kozarov’s welfare or offer her occupational screening; and
• have a system in place to implement the findings of any occupational screening

A Worker’s Husband Resigned on Her Behalf – How Should HR React?

The Federal Circuit and Family Court of Australia has confirmed that an employee’s partner cannot resign on behalf of the employee. The contract remains between the employee and the employer. Only the employee can end the contract by way of resignation. This case involved a husband resigning on behalf of his wife. He claimed that she had been bullied but failed to give specific details on the conduct. He was not a party to the employment contract.

Australian National University Professor’s Dismissal for Skinny Dipping With Student Was Valid, Fair Work Commission Finds On Appeal

The Fair Work Commission has upheld an appeal from the Australian National University that its decision to dismiss a lecturer over skinny dipping with a student was valid. Scott Morrison was dismissed in early 2020 for an incident that involved sexual intimacy with a student from two years prior. The Fair Work Commission confirmed that the University had the right to dismiss the professor over this incident. The decision is yet to be published.

Liz Cambage Denies Reports She Racially Abused Nigerian Players in Controversial Pre-Olympics Game

Basketballer Liz Cambage drew media attention at the last Olympics when she announced leaving the Australian team. New reports add to the story, with allegations that Ms Cambage racially abused Nigerian national basketball players by calling them “monkeys” after a physical confrontation. Further, multiple Nigerian players have told media outlets that Ms Cambage told them to “go back to [their] third-world country”. Cambage has denied using any racial slurs or allegations that she intentionally struck an opponent with an elbow in an Instagram post. Former Opal player, Jenna O’Hea, has told ABC that Cambage did say these things and would never represent Australia again.

FDV Leave Means Massive Fair Work Reforms

Australian Women Lawyers has welcomed the prospect of family and domestic violence leave. This leave would provide 10 days paid leave entitlement for people experiencing family violence. This form of leave is now a key area of reform for the new government. However, advocates have identified that leave cannot be implemented without other key reforms to support a systemic change. The chief executive of Her Lawyer, Courtney Bowie, identifies the importance of introducing policies and training to instil a cultural shift within workplaces. Further, she notes the importance of there being broader reforms to help women escape from family violence situations.

Plenty Of Jobs but Gender Stereotypes and Low Pay Can Hold Men Back From Careers In Aged Care

Australia has an ageing population which means there is a higher demand for age care workers. Yet, there are staffing shortages which experts attribute to the industry not being enticing for men. The aged care industry is “extremely imbalanced in terms of gender”. Close to 90% of the workers are female. The industry is notorious for low rates of pay and gender stereotypes, which might be deterring men from considering aged care as a career option. This stems from stereotypes on masculinity that need to shift in order for men to see aged care as a viable career.