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

AFP Officer Not Double Dipping

Ms Friend was employed by the Australian Federal Police since 2006. In late 2013, she was diagnosed with severe depression, anxiety and PTSD. In 2014, she submitted a worker’s compensation claim for gastritis, irritable bowel syndrome and a psychological condition she attributed to prolonged harassment and bullying from her supervisor. Liability was accepted for the acute gastritis, adjustment disorder with mixed emotional features and panic disorder. In respect of this she received compensation amounting to $83 200 per annum. In 2018, Ms Friend submitted a complaint to the Australian Human Rights Commission. She claimed she had been discriminated against because of her sex and disability (being her anxiety, depression, PTSD and resulting physical manifestations). She claimed damages of $1.3 million for economic and non-economic loss, after deducting workers’ compensation payments. The AFP agreed to pay her a lump sum of $1.25 million (the settlement payment). Comcare sought to recover $677 364 in workers’ compensation payments from the 2014 claim.

The Federal Court found the settlement payment was not captured under the workers compensation act because it could not be characterised as recovery of damages in respect of an injury for which compensation was payable under the act. Compensation under the AHRC Act was a statutory remedy and was therefore governed by the policy considerations of the anti-discrimination statute. Further, the damages under the AHRC Act for unlawful discrimination and sexual harassment were distinct from damages in respect of injury for which compensation was payable. Accordingly, no part of the lump sum paid under the settlement payment constituted damages under the workers compensation act. Therefore, a lump sum paid to settle a claim or complaint under a different statutory scheme may not be considered ‘damages’ under the workers compensation act, so the employee may also be entitled to workers compensation.

Case: Friend v Comcare [2021] FCA 837.

Football Australia to Investigate Allegations of Sexual Assault and Harassment In Women’s Football

Football Australia is forming an independent investigation into the treatment of female footballers. The investigation comes following allegations made by Lisa De Vanna, Australia’s second highest goal scorer, suggesting she had suffered sexual harassment, indecent assault, grooming and bullying from senior players throughout her career with incidents since 2001. De Vanna believed there was a toxic culture within sport and alleged she was a victim of abuse, claiming to have been sexually harassed by older teammates when she was 17. She described a series of incidents in team environments, including when she had to fight off teammates who set upon her and incidents of sexual harassment that occurred in the shower. Football Australia has invited past and present players and coaches to come forward ahead of the independent investigation.

New Code of Conduct for Victorian Barristers

Victorian barristers will now operate under a new code of conduct which will introduce new policies addressing sexual harassment, bullying and discrimination. The new code encourages barristers operating in Victoria to report any instances of bullying, sexual harassment or discrimination and to seek support if they become a victim of misconduct. Barristers who need guidance on their own conduct can access help through the Peer Support Barristers Program. These peer support barristers will be able to direct those concerned about their behaviour to remedial action or counselling. Volunteer barristers will also be able to receive training to provide support to those who have experienced bullying, sexual harassment or discrimination in the workplace.

Employee Sues BHP Over Alleged Racial Abuse at Pilbara Mine Site

Kamilaroi woman, Mandy Cant, will face BHP in court on November 2022 over allegedly racial abuse she experienced at the Pilbara mine site. Ms Cant alleges the abuse occurred on three occasions over two months in 2016 while she was employed as a material logistics officer at BHP’s Eastern Ridge mine site, and that it caused her to suffer a major depressive disorder.

Companies May Have to Account for Pay and Employment Disparities Along Racial Lines

Business’ may soon be asked to account for pay and employment disparities along racial lines as the Australian Human Rights Commission looks to establish a national anti-racism strategy. The Commission is opening public submissions on structural inequality from next week, looking at economic, social and security threats from racism. The Race Discrimination Commissioner, Chin Tan, said the “existence of wage disparities for people from culturally diverse backgrounds is extremely concerning. The Commission has received complaints about pay in the past, but there is not a great deal of data to determine the extent or scale of the problem. I’d like to see Australia undertake a process like the UK’s Race Disparity Audit to examine these kinds of disparities.”