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

Adelaide Equal Opportunity Commission Decides it does not have EEO Jurisdiction over Councillors
The Equal Opportunity Commission (Adelaide) has decided that alleged unlawful racial discrimination committed in a local council chamber is outside their jurisdiction, and not eligible to be investigated. Former councillor Robert Hasenohr wrote to the EOC in 2015, alleging that Mayor David Parkin had made a racial slur in an open council meeting in June. Mr Parkin stated “… I get stuck on his German name.” Acting Commissioner for Equal Opportunity, Anne Burgess, responded “neither the role of council member within the council, nor the relationship between elected council members, falls within any area contained in the Equal Opportunity Act.”

Lawsuit Lodged by Aged Care Employee Alleging Employer Didn’t Protect her from Being Harassed by Resident
Lee-Ann Mandic has launched a lawsuit against an aged care home claiming it failed to protect her from being bullied by one of its elderly residents. Ms Mandic claims that her employer was aware, but did nothing to stop her being subjected to “bullying, harassment, assault, battery, and victimization.” It is alleged that the resident followed Ms Mandic around making aggressive gestures, threatening her with physical violence and informing her that she was going to be sacked.

New Sex Discrimination Commissioner
Kate Jenkins has been named Australia’s new Sex Discrimination Commissioner. She believes that part of her job is to make sure people more broadly understand the concept of gender discrimination, as something that is more than a few sexist jokes. Ms Jenkins has listed domestic violence, women’s poverty in retirement, their economic independence and well-being as key gender equality challenges in 2016.
Ms Jenkins has said that the equal opportunity system needs to change. She believes that “a system that relies on the victims prosecuting the laws, and really the bravery of individuals, is not a system that will change the culture.” Ms Jenkins also said it is important to address the issue of bullying. As bullying seems to affect women and more junior people in a different way, she suggested “there is something about bullying connected with sexual harassment.”

Overuse of Internet for non work Related Reasons by Employees
Overuse of the Internet by an employee for non-work related activities is a form of underperformance or misconduct. Accordingly, Patricia Ryan advises, that an employer must warn an employee that this conduct is not acceptable, give the employee an opportunity and advise that if the employee continues that course of conduct, termination may result.

This article highlighted two cases of unfair dismissal concerning internet use. Richard O’Connor v Outdoor Creations [2011] FWA 3081 concerned an employee who was dismissed for using Google mail chats whilst at work. The Commission accepted that excessive use of social media during work hours might constitute a valid reason for the termination of employment. However, in this instance there was not sufficient evidence presented that the use of social media was excessive. Further, O’Connor’s dismissal was deemed to be unfair due to the lack of procedural fairness on the part of his employer.

Gmitrovic v Australian Government Department of Defence [2014] FWC 1637, concerned an employee who was dismissed for excessive personal use of the internet whilst at work, and the use of an anonymous search engine. The Commission noted that even if the employee “was using the internet too much for non-work related purposes, given that there was no evidence that this was affecting his work, and given the rather vague and contradictory nature of Defence’s policies on this subject, this conduct would have warranted at best some informal counselling.” As such, the Commission found that overuse of the internet was no valid reason for dismissal. Similarly the Commission found that the use of an anonymous search engine was not in these circumstances a valid reason for dismissal.

Bullying Behaviour Warranted Dismissal
ACER employed Sophie McLean in a role that required her to supervise several employees. Over a period of time, a number of employees who had reported to McLean had left the organization. ACER commissioned an investigation to assess Ms McLean’s behaviour towards the employees. Although the investigation found that Ms McLean was dedicated and a perfectionist in terms of the performance of her duties, there were several negative findings in relation to her treatment of subordinate employees. Ms McLean’s behaviour towards subordinates was found to be condescending, belittling and humiliating. Ms McLean had received counselling and several warnings over the years in relation to her interactions with other employees. The Commission found that Ms McLean’s dismissal was valid and accordingly that she had not been unfairly dismissed.