What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 6 – 12 February 2017

Rail Employee’s Dismissal Valid Due to Serious Bullying Behaviour
A Rail Tram and Bus Union representative, who was fired for allegedly bullying and harassing colleagues, has lost her unfair dismissal case. Samantha Rombola was employed as a Passenger Service Assistant. Ms Rombola’s employment was terminated on 29 July 2016 after an investigation into five allegations of misconduct.

The Rail Commissioner found that four of the five allegations of misconduct were substantiated. The first instance of misconduct involved Ms Rombola treating colleagues in a disrespectful manner. The Rail Commissioner found that Ms Rombola had made a number of disrespectful comments about her colleagues including a female colleague who had been promoted. It was found that Ms Rombola said words to the effect of: “that f***ing bitch only got the job because she worked at the Port with Rocky” and “who was she rooting to get that job”. Other instances of misconduct that Ms Rombola engaged in, included: failing to comply with a reasonable and lawful managerial direction, taking a personal phone call whilst on duty and treating a passenger in a disrespectful and discourteous manner. These instances of misconduct were considered to be contrary to the Professional Conduct Standards of the Code of Ethics. The Rail Commissioner found that Ms Rombola “acted inappropriately and acted in a belligerent, intimidating and unprofessional manner” towards her colleagues and a member of the public, and recommended her termination.

The Fair Work Commission held that Ms Rombola’s conduct provided her employer with a valid reason for her dismissal. In his judgment, Commissioner Hampton stated:
“The conduct as demonstrated by the evidence was more than bad language. The tone and manner of the comments and the associated conduct was clearly unreasonable and properly described as serious bullying, even in a robust workplace where inappropriate language was common and tensions between employees were known to exist.”
Commissioner Hampton noted that Ms Rombola’s conduct “was not consistent with the relevant policies and the reasonable expectations within the workplace” and “undermined the necessary trust and confidence in the workplace, […] significantly impact[ing] upon working relationships with management and with other employees.” The FWC held that Ms Rombola’s dismissal was not harsh, unjust or unreasonable and ordered the dismissal of the application.

Physical Assessment for Inherent Requirements of the Job Not Correct
Stephen Martin was employed as a truck driver and a Bulk Delivery driver at TNT’s Salisbury Depot. In early 2014, Mr Martin injured his right knee. As a result of this injury he was stood down without pay for a period. Upon his return to work, Mr Martin was on light duties. On 24 April 2015, Mr Martin underwent a total right knee replacement. Five months later, on 24 September 2015, Mr Martin obtained a medical clearance from his General Practitioner to return to work. TNT requested that Mr Martin attend two appointments – a functional assessment with an Exercise Physiologist and a fitness for duties assessment with an Occupational Physician – to ensure that he was able to meet the inherent requirements of the position. During his functional assessment, Mr Martin completed floor to waist lifts, up to a weight of 25kgs, without any pain or issues. At this point, Mr Martin asked to stop as he “never [had] to lift anything this heavy or heavier anyway.”

On 4 March 2016, Mr Martin attended a meeting at which he was provided with a show cause letter entitled “Outcomes of Fitness For Duties Assessment”. The letter noted that PUD drivers and dockhands were required to be able to lift: 40kg floor to waist; 30kg waist to shoulder and 20kg above shoulder. Further, the letter stated, “the results of the assessment indicate that you are unable to safely perform the inherent physical requirements of your current role and impose significant restrictions on the kind of work that you can safely perform at TNT.”

Mr Martin made an application to The Fair Work Commission (Martin v TNT Australia Pty Ltd [2017] FWC 440) to resolve the dispute about his ability to do the inherent requirements of his job. The Commission found that Mr Martin was fit to perform the inherent requirements of the role of Bulk Driver with TNT. In reaching this decision, Commissioner Spencer considered medical evidence of the risks of any employee lifting any weight of more than 20kg unaided, the evidence that the requirement to lift 40kg was rarely required and the fact that TNT provided lifting aids and manual handling devices for employee use.

Slater and Gordon Accountant Suing Employer for Discrimination Post Maternity Leave
Sarah Wilton, a former senior accountant at Slater & Gordon is suing the firm, alleging that she was discriminated against after she returned from maternity leave. Before commencing maternity leave, Ms Wilton was in charge of managing the firm’s work in progress accounting. When she returned to work after maternity leave, Ms Wilton claims that she was effectively demoted and given ad hoc tasks rather than the senior accounting work that she had been engaged in.

Ms Wilton also alleges that a colleague bullied her after her return. It is alleged that the colleague excluded Ms Wilton from certain meetings, did not hand over crucial work documents and asked Ms Wilton to change her child care arrangements to stay back at work later. Further, it is alleged that the colleague “queried whether [Ms Wilton’s] child had been born prematurely because she had been working so much prior to her maternity leave”. A bullying complaint to Slater & Gordon’s HR department was found to be unsubstantiated. Ms Wilton was made redundant despite a senior manager within the company allegedly encouraging her to apply for a new tax role position.

Ms Wilton’s claim was filed in the Federal Court late last month. Ms Wilton is seeking lost income, lost paid maternity leave and damage.

Sexually Threatening Comment Valid Reason for Dismissal
Glenn Rogers made an application for an unfair dismissal remedy in relation to the termination of his employment from Allianz Australia Services Pty Ltd. Mr Rogers was employed as a National Business Development Manager of Club Marine Limited, the boating insurance branch of Allianz, until his dismissal on 8 August 2016. Mr Rogers was dismissed following two incidents at a company team-building event at the Sandringham Yacht Club.

The first incident involved Mr Roberts behaving aggressively towards a female colleague, Ms Clayton. Mr Rogers told Ms Clayton to “shut up” and pointed at her aggressively. Commissioner Roe held that this behaviour was not sufficiently serious to form a valid reason for dismissal. Commissioner Roe stated:
“In my view it is to be expected that employees will be critical of the employer in discussions at work social functions. When work colleagues relax it is reasonable for them to let off some steam. The standards of behaviour which are appropriate at a work social function and those which are appropriate during normal working hours and duties are different in this respect. This is particularly the case in circumstances where the employer has funded alcohol at the event and given that the more formal part of the event had concluded.”

The second incident involved Mr Rogers saying to Ms Farrelly that she should “be quiet or I’ll touch your vagina like everyone else has done tonight.” Commissioner Roe held that this conduct constituted a valid reason for dismissal. Commissioner Roe stated:
“The comments are extremely offensive and threatening. They are a threat by a senior male employee to commit a violent assault on a female colleague. In my view it is totally irrelevant as to whether or not there is any basis for the suggestion that Ms Farrelly had allowed another employee to touch her earlier in the evening; there is absolutely no basis for Mr Rogers to threaten to assault Ms Farrelly.”
The FWC held that the dismissal was not harsh, unjust or unreasonable and dismissed the application.

Culture of Bullying and Lack of Support inside AFP
Current and former agents and officers of the Australian Federal Police have claimed that a culture of bullying and inadequate psychological support has led them to contemplate or attempt suicide. Currently, the AFP employs around three psychologists, one chaplain and two welfare officers, all based in Canberra, to serve 3481 sworn members nationwide. AFP members also have access to an external 24-hour Employee Assistance Program over the phone. The AFP has stated that the organisation also provides “access to in-house psychologists, social workers, specialist nurses and family liaison officers who “provide real-time support face-to-face, via phone and also via email”. Following critical incidents, the AFP also “deploys specifically trained professionals to provide support, informal and formal debriefs and psycho-education to any members who are affected.” AFP officers claim that despite these systems, they are still not being provided with adequate support.

A review into harassment and bullying within the AFP was completed in August 2016. The organisation is still in the process of implementing these recommendations.