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

Sexist Behaviour from Heads at Punchbowl Boys School
The NSW Education Department has sacked Chris Griffiths and Joumana Denanoiu from their positions as Principal and Deputy Principal of Punchbowl Boys High following an investigation. It is alleged that a number of issues contributed to this decision including Mr Griffiths’ ‘unofficial policy’ of excluding female teachers from graduation ceremonies and presentation days.

Age Discrimination from One Nation for 88 Year Old Candidate
Rob McLean, a former One Nation official has allegedly filed proceedings with the Equal Opportunities Commission after being told that he was “too old” to run for the Western Australian Parliament. At a media conference, Mr McLean alleged that Pauline Hanson had said: “Ron, I’m sacking you from the position on [the] agriculture [ticket], I believe you’re too old and you’ll be 91 when the term’s finished.” Senator Hanson’s Chief of Staff, James Ashby stated that the party did not wish to comment on this matter, as could be the subject of future legal proceedings. Despite making this statement, Mr Ashby conceded that Senator Hanson had said: “it’s not a good look having an 88-year-old run as a candidate.”

Bullying Infographic from Safe Work Australia
Safe Work Australia has released an infographic on workplace bullying and violence. The infographic indicates that there is a strong relationship between harassment and bullying and mental health. One in three women and one in five men who make a claim for a mental disorder report that the claim involves harassment or bullying. The infographic also provides that 37% of workers report being sworn or yelled at in the workplace, 22% of workers report being physically assaulted or threatened by patients/clients and 20% of workers report feeling uncomfortable due to sexual humour.

Double Amputee Claims Job Discrimination
Double amputee Owen Telford claims that he is being discriminated against on the basis of his disability. In recent months Mr Telford has applied for a position as a chef at an aged care facility and a position at a retail outlet in the city. Neither application was successful. Mr Telford claims that his application for these positions was unsuccessful because of his disability. Mr Telford argued that employers “see the disability, rather than the ability,” pleading that he “just want[s] to be given a go” so that he “can prove what [he] can and can’t do.”

Violence Valid Ground for Dismissal
The Fair Work Commission (in the case of Sekirski v Scope (Vic) Ltd [2017] FWC 1200) has found that an employee who assaulted a co-worker by striking her in the face was validly dismissed. Stif Sekirski commenced employment as a Disability Support Worker with Scope (Vic) Ltd in November 2014. Mr Sekirski’s employment was terminated on 2 September 2016 on grounds of serious misconduct. It was alleged that Mr Sekirski punched a co-worker in the face, then called her a bit** and threw a chair in her direction. The FWC was satisfied that this conduct had occurred, and held that this conduct provided Scope with a valid reason to terminate Mr Sekirski’s employment.

Conversations with Sex Discrimination Commissioner
Sex Discrimination Commissioner Kate Jenkins has released a report into gender equality within Australia. The report contains details of conversations that Commissioner Jenkins had with more than 1,000 people as she travelled through every state and territory over the past 6 months. This report contained some details of workplace bullying and discrimination. In particular, Commissioner Jenkins noted that she heard that “isolation can make women more susceptible to violence and harassment and less able to speak up or escape when experiencing sexual harassment, discrimination and violence.” One example provided within the report was a young female vet who experienced discrimination when she became pregnant but was reluctant to complain as her future employment prospects in the small community in which she lived would be affected by making a complaint. Commissioner Jenkins also noted that she heard that there “is a high tolerance of sexism and discrimination against women working in traditionally male dominated industries like agriculture and mining.”

Employer Didn’t Assess Reasonable Accommodation and Inherent Requirements of the Job for a Person with an Injury
Jia Qi Yan made an application for an unfair dismissal remedy (in the case of Yan v Spotless Facility Services Pty Ltd [2017] FWC 922) in respect of the termination of her employment by Spotless Services Australia Ltd. Ms Yan commenced employment with Royal Rehab as a Personal Food Assistant in March 1998. Ms Yan’s employment was later transferred to Spotless Services.

In October 2014, Ms Yan injured her elbow while at work; however she continued to perform her full range of duties until November 2015, when some restrictions were placed on the duties she could perform. On 1 February 2016, Ms Yan was stood down from her position and directed to undertake a functionality assessment. The result of the functionality assessment was a finding that Ms Yan was unable to perform her pre-injury duties. On 30 March 2016, Ms Yan’s employment was terminated.

The FWC determined that Ms Yan’s dismissal was harsh, unjust and unreasonable, as Spotless Services did not have a valid reason to dismiss Ms Yan. The FWC considered that the Functional Assessment Report (Warda Report) did not address the inherent requirements of Ms Yan’s position and did not consider whether any accommodation could be made to allow Ms Yan to perform the inherent requirements of her position having regarding to her physical limitations. Accordingly, the FWC held that there was no clear finding in the Warda Report that Ms Yan would not be able to perform the inherent requirements of her position. The FWC ordered that Ms Yan be reinstated to her position and awarded twelve weeks salary.

Grabbing an Employee and Sexually Propositioning her was Valid Reason for Dismissal
The Fair Work Commission dismissed a former Calvary Hospital office worker’s application for an unfair dismissal remedy. Andrew Powell commenced employment with Calvary Public Hospital in an administrative role in September 2014. On 26 May 2016, Mr Powell was suspended without pay pending an investigation into allegations of serious misconduct. It was alleged that Mr Powell physically assaulted Ms Hacker, by “forcefully grabbing her by the arm and subsequently placing his hands on her hips and propositioning her by suggesting that they ‘catch up’ on the weekend.” On 9 June, Calvary Hospital appointed Alison Easton, an external investigator to consider the allegations. Ms Easton determined that there was enough evidence to form the opinion that Mr Powell sexually harassed Ms Hacker by subjecting her to unwelcome conduct of a sexual nature. Further, Ms Easton found that Mr Powell’s conduct breached Calvary Health Care A.C.T.’s Code of Conduct, Calvary Health Care’s Workplace Behaviour Policy and Procedure and section 9(f) of the Public Sector Management Act 1994. Mr Powell was issued with a show cause letter and provided with an opportunity to respond. On 5 August 2016, Mr Powell’s employment was terminated.

Deputy President John Kovacic found, on the balance of probabilities, Mr Powell did engage in serious misconduct by grabbing and propositioning Ms Hacker. This supported the finding that there was a valid reason to terminate Mr Powell’s employment. Deputy President Kovacic concluded that Mr Powell’s dismissal was not harsh, unjust or unreasonable and dismissed the application.