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

Unfair Dismissal for Harassing Customer: Bridge v Globe Bottleshops [2011] FWC 3253

The applicant was dismissed by their employer for serious misconduct involving harassment in breach of the respondent’s safe workplace policy following a customer complaint. The customer alleged that the applicant made comments of a sexual nature towards her. The respondent decided to dismiss the employee due to the complaint and a history of formal warnings regarding previous inappropriate behaviour towards female customers. The applicant denied that they made the comments and submitted that they were not offered procedural fairness as they weren’t shown the CCTV footage or provided with the identity of the complainant during the investigation. The applicant further alleged the respondent bullied them during their employment, of which no evidence was found. The Commission was satisfied that the comments had been made by the applicant and that a reasonable person would have anticipated that they would cause the customer to feel offended or harassed. However, they held that little to no procedural fairness was afforded to the applicant. He was not given the details of the complaint, interviewed or given reasonable opportunity to respond to the reasons for dismissal. The Commission further found that the respondent had decided to dismiss the applicant before the investigation into the complaint had commenced. The Commission held that the applicant should have been provided with further details of the incident and an opportunity to view the CCTV footage. The respondent had no reasonable excuse for their failure to afford procedural fairness. Therefore, the dismissal was unfair and the respondent was ordered to pay compensation to the applicant amounting to 2 weeks’ wages plus superannuation.

Bullying Allegations Against SA Minister Revealed In Resignation Letter

A resignation letter from a former employee of the South Australian Minister for Transport and Infrastructure, Corey Wingarrd, has detailed allegations of bullying, harassment and abuse in his electorate office. The letter, from 2018, was read out by Shadow Minister Tom Koutsantonis in Question Time under parliamentary privilege. It described verbal abuse and physical aggression experienced by the employee in the office environment, to the point that they ‘no longer felt safe and cannot return for fear of physical harm or psychological distress.’ The letter noted the bullying, harassment and abuse within the workplace had occurred since April 2017 after the employee raised concerns about Mr Wingard’s decision to offer employment to one of his family members. The employee alleged that Mr Wingard’s behaviour towards them became ‘increasingly intolerable’ after they refused to take part in the ‘dishonest practice’ of inaccurately recording the hours worked by Mr Wingard’s relative, including when she did not work at all. The employee noted that they considered the behaviour of Mr Wingard in that time was inappropriate and inconsistent with community expectations and safe workplace practices. Mr Wingard told Parliament he had no recollection of inaccurate hourly recording.

Super Fund Hit by Bullying Claims

An industry super fund for electrical workers has been accused of fostering a ‘toxic’ corporate workplace culture, causing staff to resign. The Energy Industries Superannuation Scheme failed the Australian Prudential Regulatory Authority’s new annual performance test. The super fund has seen three human resources executives leave over the past four years and employed three general counsel between 2015 and 2020. Sources suggest this turn-over rate is linked to problems with its corporate culture. A former employee described EISS as a ‘dreadful place to work’. Former employees continue to meet regularly for ‘support groups’ after feeling traumatised by the experience. This year, the fund launched a three-month investigation into bullying after the EISS general manager of people and culture, Lisa Elias, was seen ‘storming’ out of a meeting room, saying she had been subject to bullying by a senior manager. She was forced to take more than three months of personal leave while the fund hired external auditors, WorkDynamic, to conduct interviews with staff members about the bullying allegations. Five former employees claim this investigation was not conducted in good faith because many staff were not interviewed citing fear of intimidation or retribution.

Journalist Sues the ABC For Discrimination

A Pilbara-based ABC journalist is suing the broadcaster over an $18 000 pay cut she claims happened despite her being ‘overworked’ to the point her medical conditions were aggravated. Senior features reporter, Susan Staden, claims the ABC discriminated against her and breached employment law. The ABC last year cut an allowance to ‘help staff with the inflated cost of housing in mining areas’ on the basis that there was no longer a gap. Following this, Ms Staden met with the Community and Public Sector Union and the ABC but failed to get the decision overturned. She claims that following the reduction in pay she was required to take on additional work and asked to swap to a 5.:30 am roster. Ms Staden presented medical certificates advising that the roster change would be ‘detrimental’ to her conditions and taking personal leave. The ABC then requested a meeting with her doctor. Ms Staden claims her work has exacerbated medical conditions that she experienced in 2018 and 2019, including tinnitus and colitis. She alleges these issues arose due to ‘being overworked; the stress and exhaustion from the long-distance travel, and insomnia caused from working in a high-turnover environment where adapting to change is constantly needed.’ In a letter to management, Ms Staden said it was ‘unreasonable to reduce 15% of her remuneration and to expect her to continue to do the same duties alongside the extra work.’ Ms Staden alleges she was given a performance management plan that did not take into account the 13 000km she had driven to deliver across multiple platforms, the use of old technologies, or her annual leave for medical conditions. Ms Staden said her medical conditions affected her ability to perform and her employer had ‘taken adverse action against her by putting her on a performance management plan’. Ms Staden is seeking compensation for financial loss as well as damages for hurt and humiliation and general medical harm.

TechOne Faces High Court Challenge Over Bullying and Dismissal Claims

Software company, TechOne, is facing a High Court challenge over claims they illegally fired a former manager and bullied him to the extent he is unable to work again. The former employee, Benham Roohizadegan, will seek special leave to appeal to the High Court, after the full Federal Court handed down a decision last month that overturned a $5.2 million damages payout he initially received. The sum was ordered after the court found TechOne breached general protections afforded under employment law by dismissing him in 2016 after he complained about being bullied at work. The trial judge found Mr Roohizadegan was subjected to abusive language, victimisation, gas-lighting and boorish conduct while at TechOne, with the actions of its executives leaving him ‘incapable of ever working again.’ The full Federal Court overturned this, finding Justice Kerr failed to consider the ‘essential integer’ of the role of the complaints in Mr Roohizadegan’s dismissal. TechOne had pointed to these complaints as the basis for his termination, with most relating to lagging performance. Mr Roohizadegan plans to tell the High Court that the full Federal Court did not have the right to make this ruling as it required overturning Justice Kerr’s finding as to Mr Di Marco’s state of mind in deciding to dismiss him.

Senior Firefighter Calls Out Sexual Harassment

Commander Donna Wheatley has revealed allegations of sexual harassment and assault within Victoria’s freighting ranks. Among them, she alleges having her breasts and buttocks groped, being told she would be having sex with a group of firefighters and, as a junior firefighter, being forced to kiss a superior. She further claims some of Victoria’s highest ranking fire service officers sought to downplay inappropriate workplace conduct, including an incident in which a sex doll was brought to a work function. None of these incidents were acted upon despite complaints and firefighters who were known as sexual harassers were protected. In addition to sexual harassment, Ms Wheatly faced routine gender discrimination, alleging she was called a bitch, belittled, and addressed as ‘sir’. The allegations are made as part of legal actions for damages, alleging that the treatment has caused her serious trauma and impacted her ability to keep working.

Pilot Age Discrimination Case Fails: Peggie v Qantas Airways Limited [2021] FWC 5458

Two applicants applied to the Fair Work Commission for unfair dismissal from their employment at Qantas. Both applicants were employed as long-haul international pilots, and both had attained 65 years of age. They were dismissed because under International Civil Aviation Organisation rules prevent pilots engaged in international flying from operating in most airspaces after they turn 65. The applicants argued this was unfair and amounted to unlawful age discrimination. Qantas argued that the dismissal was not unfair because under this rule the pilots could not perform the inherent requirements of their role. The applicants contended that because all international pilots are presently stood-down, this rule was not an inherent requirement of the position of international pilot. The applicants pointed to the fact that the respondent continued to employ them beyond their 65th birthday as proof that it was possible to retain them. They further contended that they ought to have remained employed on leave without pay to allow them time to transfer to short-haul pilot positions. Qantas explained that dismissals were delayed because the business was in crisis mode and in the process of examining options for managing the impact of COVID-19 on its workforce at the time of the applicants’ birthdays. The Commission noted that the ICAO rule still applied even if no one was currently flying. They further accepted that Qantas’ delay was not a concession that employment could be maintained. The Commission was not satisfied that the dismissal was unfair nor that it constituted age discrimination. The respondent was entitled to have regard to the uncertain future about when training and opportunities for transfer may arise. Furthermore, the dismissal was not harsh, unjust or unreasonable. Therefore, the application was dismissed.