What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 8 – 14 August 2016

Female Police Officer Settles Sexual Harassment Allegations
A female police officer, (“A”), who alleged that she was sexually harassed while working with the South Australian police, has settled the matter out of court. The alleged harassment included male colleagues touching her, having male genitals drawn on the inside of her police cap, and sending her crude messages while she was working including one about a ‘gluten-free penis.’ SA Police denied the claims, alleging that the woman was not harassed but was engaged in extramarital sex.

Racist Remark at Job Interview
Banjo, a major Sydney advertising firm has issued an apology after allegedly telling a job applicant that she was “too brown.” Surungi Emily Horol made a Facebook status stating: “Yesterday I had an interview at a creative agency in Sydney and was told that due to being brown and Indian (though I am Sri Lankan) and have lived in Australia for 27 years I wouldn’t be suitable for the role as they already had two other Indian people. Direct quote: ‘ the client might be alarmed by having three brown skin people attend a meeting’…“

Banjo CEO Andrew Varasdi has offered an unreserved apology for the “unfortunate misunderstanding.” Mr Varasdi stated that: “The senior staff member who conducted what was a very positive interview, made a casual remark at the end of the interview, which was intended to set the person at ease. Unfortunately, it was taken out of context and has since gained some notoriety on social media…Needless to say, the Banjo staff member is deeply upset by the incident.”

Workplace Sexual Harassment in the UK Getting Worse
A survey on sexual harassment in the workplace in the United Kingdom has found that 52% of all women and 63% of women aged 18 to 24 said they have experienced sexual harassment at work. This includes women hearing comments of a sexual nature being made about other women in the workplace (35%), and women themselves being subject to unwelcome jokes of a sexual nature (32%). The study found that in nearly eight in 10 cases, the woman did not feel able to tell her employer about the harassment or ask for help – and 24% felt they would not be believed or taken seriously. In 17% of cases, the main perpetrator of the harassment was someone with line management responsibility for the victim.

Termination for Breach of Trust not Harsh
The FWC (in Jasmeen Kaur v The Frank Whiddon Masonic Homes of New South Wales [2016] FWC 3691) has found that the termination of Jasmeen Kaur’s employment was not harsh, unjust or unreasonable. Ms Kaur’s employment was terminated following an investigation, after a resident of the nursing home at which Ms Kaur worked had a fall. It was alleged that Mrs Kaur failed to complete any documentation regarding a fall, failed to complete an incident report, and failed to follow the Falls Management Process including undertaking a clinical assessment of the resident. Further, it was alleged that Ms Kaur breached the Whiddon’s Group Code of Conduct as she told an assistant in nursing (AIN) “not to tell anyone and not to [get her] in trouble”. The FWC held that this constituted a valid reason for dismissal, as this behaviour reasonably called into question whether Whiddon Group could place trust and confidence in Ms Kaur.

Reasonable Management Practice vs Bullying
Luis Perez, a housekeeping employee engaged at the Alice Springs Hospital made an application for an order to stop bullying (in Luis Perez [2016] FWC 4097). Mr Perez referred to eight alleged incidents in support of his claim including being spoken to in a rude and abusive manner by Ms Thomas (‘Housekeeping Leading Hand’) who allegedly narrated tasks to him and loudly scolded him in front of staff; being called a “pig” by Ms Thomas; and being rudely awoken by Mr Meldrum whilst resting his eyes in a darkened unused room of the Old Emergency Department (during a 15 minute tea break), and further being directed to take his lunch and tea breaks in the staff room. On all occasions Mr Perez made complaints via email about the incidents to either Ms Sauvana (his Supervisor) or Mr Meldrum, and in some instances, to both.

The FWC held that many of the incidents relied on by Mr Perez were not supported by evidence and did not constitute unreasonable conduct but were in fact reasonable management practices. The Commissioner identified three incidents that could potentially be considered unreasonable behaviour which were-
1.Elements of an exchange between Ms Thomas and Mr Perez where he was spoken to in a rude and abusive manner,
2.An incident where Ms Thomas called Mr Perez a “pig” after he burped loudly, and 3. The failure to take sufficient measures to consider Mr Perez’s earlier allegations of workplace bullying.

While the Commissioner accepted that they did not constitute best practice/best behaviours they also did not constitute unreasonable behaviour within the meaning of the Act.