What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 4 – 10 April 2016

When is it Valid for an Employer to Dismiss an Employee for Inappropriate Social Media Postings?
The Fair Work Commission has ruled in Starr v Department of Human Services [2016] FWC 1460 that a Centrelink employee who referred to clients “spastics and junkies” did not do enough to lose his job. Daniel Starr had been an employee of Centrelink for 21 years. Mr Starr was dismissed for a series of comments posted on social media sites Whirlpool and Sportal over a period of three years. Mr Starr made multiple posts on these sites; including referring to clients as “spastics and junkies,” and noting that Centrelink has “our share of utterly useless people that couldn’t get a job anywhere else.” Centrelink terminated Mr Starr’s employment – stating that he had breached the Australian Public Service Code of Conduct which declared “employees occupy a position of trust” and should work to the “highest standards of ethical behaviour.”

The FWC found that some of the posted comments had not breached the APS Code of Conduct and taken in their entirely were serious but did not constitute a valid reason for dismissal. The court also said that when considered with the length and good quality of Mr Starr’s service, the lack of evidence that the Department’s reputation was actually damaged, and Mr Starr’s clear and genuine remorse and regret for his conduct the FWC found that the dismissal was harsh. Mr Starr was re-instated but not financially reimbursed for his lost income. For an in-depth understanding and analysis of this case click here.

The Need to Change the Current Complaint Based System For Discrimination and Harassment
Kate Jenkins, Victorian Human Rights & Equal Opportunity Commissioner has said that Australia’s current complaints driven system will not resolve systemic issues of sexual harassment and discrimination in the workplace. Ms Jenkins has stated, “the focus on investigation and discipline is not working. A complaints-driven system will never solve this problem. It’s relying on the bravery of an individual to enforce the laws. Instead the system harms the victims and often fails to deliver justice to the perpetrator.” Luke Cornelius, Assistant Commissioner of Victoria Police agreed with Ms Jenkins, stating that the Australian system needs to “shift from being complaint-driven and investigation-led to being victim-centric and front-ending the support and interventions for the victims and having the organisation assume the role of driving the accountability with perpetrators in workplaces.”

Dismissal Upheld for Threatening Behaviour
The Fair Work Commission has found in the recent case of Morphett v Pearcedale Egg Farm [2016] FWC 1940 that James Morphett, an employee at Peacedale Egg Farm, was not unfairly dismissed. Mr Morphett had an accident at work, falling off a ladder and injuring his back. Following the injury, a meeting was held to discuss the injury with Chris Monnier, the General Manager, and Mr Van Gent. The meeting became confrontational and it was alleged that Mr Morphett said to Mr Monnier “that if he didn’t have a sore back that he would stand up and ‘thump him.” After the meeting Mr Monnier terminated Mr Morphett’s employment. Mr Morphett alleged that his employment was terminated as he made a workers compensation claim. In finding that Mr Morphett was not unfairly dismissed, the FWC noted that “whilst bad language may have been acceptable in this workplace, threatening behaviour is not.” Accordingly there was a valid reason for dismissal.

Employer Didn’t Conduct Investigation Appropriately
Another unfair dismissal case (Reposar v Morris Corporation Ltd [2016] FWC 1652) Jonothan Reposar was employed by Morris Corporation Ltd as a Breakfast Chef; working at a Karratha mining and resources plant prior to the termination of his employment. A number of performance issues had been raised with Mr Reposar throughout his employment, concerning the “manner of his relationship with other Morris Corporation employees.” Many of these matters were subjects of disciplinary discussions with Mr Reposar. The FWC found that Mr Reposar’s “inability to harmoniously relate to numerous other Morris Corporation employees and the significant number of complaints about his behaviour toward other employees represented a valid reason for the termination of his employment.” However the FWC found that Mr Reposar’s dismissal was unfair as it was both unjust and unreasonable. The FWC noted that the dismissal was unjust because the allegations against Mr Reposar were not sufficiently specified so that he was able to properly respond to him. Further, the termination was unreasonable because the extent of other employee contributions to his behaviour has not been properly established.

Yet again ANOTHER case where the employer fell down in its responsibility to conduct an investigation that followed the principles of natural justice. In order for you to not suffer the same fate, EEO Specialists conducts a public Grievance Officer workshop twice a year that trains critical staff within an organisation to know how to conduct a formal complaint properly, following the principles of natural justice. The next public grievance officer workshop is on 24th and 25th May 2016. For more information contact Franca at EEO Specialists on (08) 6102 4411.