What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 7 – 13 November 2016

Anti-Muslim and Homophobi Comments Didn’t Warrant Sacking by BHP Billiton
The Full Bench of the Fair Work Commission has ordered BHP Billiton to reinstate a miner sacked for a series of anti-Muslim and homophobic comments. The employee, Mr Goodall, was terminated in February 2016 after an investigation into comments that he made on the mine’s two-way radio system. On the radio system, Mr Goodall made a range of comments including: when talking about a colleague, stating that “he’d probably like a good teabagging”; and saying that Muslims “had 1400 years of bloody inbreeding so they gotta be f***ed up.”

At first instance, the FWC held that Mr Goodall’s dismissal was harsh, but was not unjust or unreasonable. The FWC noted that the comments made by Mr Goodall that were crude, lewd and sexist, should be regarded as being at the lower end of the scale of seriousness. Commissioner Saunders considered that Mr Goodall’s comments concerning Muslims should be regarded as being in the mid-range on a scale of seriousness. Commissioner Saunders stated that:
“If Mr Goodall had directed his comments concerning Muslims to any particular employee or group of employees at the Mine, I would have regarded his conduct at the high end of the scale of seriousness. However, Mr Goodall did not direct his comments concerning Muslims to any person or group of people at the Mine. Mr Goodall was not aware of any Muslims working at the Mine, and he would not have made such comments if he was aware of any Muslims working at the Mine. His comments concerning Muslims represent an expression by him of his personal views. He should not have expressed such views at the workplace, particularly over a two-way radio system where up to about 100 employees and contractors at the Mine could have heard and potentially been offended by the comments, whether or not they were Muslim.”

The Full Bench of the FWC granted Mt Arthur permission to appeal this decision as the appeal “raised a novel question, namely whether derogatory remarks in the workplace of the type made by Mr Goodall – that is, remarks which vilify persons of a particular religion – are capable of being assessed, like most forms of misconduct, on a range of seriousness, or whether they constitute a form of misconduct which is sui generis and must be considered in a distinct way.”

In the Full Bench decision, Vice President Hatcher and Deputy President Wells stated that “it is reasonable to conclude, for example, that for an employee to personally direct anti-Muslim comments at a fellow employee who is known to be of the Islamic faith is objectively more serious than the expression of anti-Muslim opinions to fellow employees who are known to hold similar views, even where that is done in a manner (as Mr Goodall did) where the opinions may be heard by other employees who may be offended by them, because in the former case there is likely to be both the intention and effect of degrading, belittling or humiliating a particular individual, while in the latter case such an intention and effect are less likely.”

Commissioner Leigh Jones, in dissent, considered that the decision at first instance “took into account irrelevant matters in relation to the comments made by Mr Goodall and failed to take into account relevant matters about the known adverse impact of discrimination in the workplace.” Commissioner Jones considered that Commissioner Saunders failed to properly classify ‘crude, lewd, and sexist’ jokes as homophobic, and further, failed to attach an appropriate level of seriousness to these homophobic comments in circumstances where Mr Goodall directed them at a particular individual. In relation to Mr Goodall’s comments concerning Muslims, Commissioner Jones stated that when these “deeply offensive and Islamophobic comments are properly considered, it cannot logically follow that the comments” would be considered as being mid-range on a scale of seriousness. Commissioner Jones stated that “In my opinion, Mr Goodall’s careless disregard for whether, out of the 100 people who might have heard his comments, might be Muslim and be offended by them, should have been an aggravating factor and rendered the conduct more than a mid-range breach.”

The majority dismissed the appeal and upheld orders for Mount Arthur to reinstate Mr Goodall.

Appco Sued $85 million Class Action
Around five hundred former Appco employees have joined a $85 million class action against the company. Employees of Appco have alleged that they were forced to work up to 100 hours per week and participate in bizarre hazing rituals. It is alleged that these rituals included cross-dressing, licking someone’s underwear or ‘shoving cigarettes up their bottoms.’ Appco Australia’s CEO Martin Gaffney said the organisation had “nothing to hide,” stating that these allegations “relate to two marketing companies that have closed in the past two years.”