What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 9 – 15 January 2017

Shire of Denmark Employee Succeeds in Unfair Dismissal Claim
Councillor Rob Whooley has succeeded in an unfair dismissal action against the Shire of Denmark. Councillor Whooley commenced legal action against the Shire of Denmark after his employment as Director of Infrastructure was terminated in June 2016. The reason for the termination of his employment has not been disclosed, with the Shire stating that there were “serious breaches of his employment contract which made the employment relationship untenable.” It is expected that the Western Australian Industrial Relations Commission will publish their findings within the next couple of weeks.

Recent Study Regarding Negative Workplace Behaviours
A study of employee sentiment undertaken by Reventure has revealed a growing concern about negative workplace events. The report which considered the responses of 1000 Australian employees, indicated that 10% of Australian employees experienced verbal abuse or bullying in the workplace; 20% experienced high levels of negativity; 18% experienced conflict with their boss; and 14% felt their mental or physical health decline as a direct result of their work.

Channel 7 Newsreader Applies for Unfair Dismissal
Channel Seven newsreader Talitha Cummins has applied for an unfair dismissal remedy after being terminated whilst allegedly on maternity leave. Ms Cummins was expecting to return to her role next month, but was offered a temporary role she was unable to take due to motherly commitments. It is reported that Ms Cummins received a call about her dismissal on the same day promotions began an episode of ABC’s Australian Story in which Ms Cummins featured.

Employee Charged with Stalking Apprentice
Tommy Liu has been charged with two counts of stalking and one count of using a carriage service to harass an employee. It is alleged that Mr Liu harassed and stalked his young apprentice over two years, using explicit and threatening language in text messages. In the Frankston Magistrate’s Court, Mr Liu admitted to sending the messages, but stated that he considered the “nature and tenor [of the messages] is something that is used in the workplace every day”. The Magistrate adjourned the case until March 24 to allow the examination of new material. A Worksafe investigation is also being carried out into the apprentice’s complaints.

Swearing and Aggressive Behaviour Not Valid Reason for Dismissal Due to Contributing Actions of Complainant
Peter Watts (in the case of Watts v Oaky Creek Coal Pty Ltd [2016] FWC 9090) applied for an unfair dismissal remedy with respect to dismissal from his employment with Oaky Creek Coal Pty Ltd (OCCPL). Mr Watts was employed by OCCPL as a Surface Coordinator from 24 March 2014 until the day of his dismissal on 9 October 2015. Mr Watts and another employee of OCCPL, Mr X, were involved in an ongoing conflict. That conflict culminated in a number of exchanges between Mr Watts and Mr X on 21 August 2015. The first exchange involved a heated conversation between Mr Watts and Mr X where Mr Watts said to Mr X words to the effect of “if you have a problem then I am ready to sort it out when you’re f***ing ready.” The second exchange occurred into the car park when Mr Watts said that he was willing to sort the issue out in town if Mr X wanted to, and told Mr X to “get the f***” out of [his] way.” The third exchange involved Mr Watts stopping his car approximately 50 meters away from Mr X’s house on the way home from work. Mr Watts said that he did this because he believed that Mr X was following close behind him and was concerned that Mr X wished to continue the altercation at Mr Watts’ home. ‘ Mr X complained about Mr Watts’ conduct on 21 August 2015 and then took a period of sick leave. Following an investigation into the conduct, Mr Watts was dismissed for his parts in the events of 21 August 2015 and Mr X was dismissed for lying about those events during the investigation of his complaint.

The FWC concluded that although Mr Watts’ conduct on 21 August 2015 “left something to be desired,” the conduct was not sufficiently serious as to constitute a valid reason for dismissal. The FWC considered that Mr X had played a significant part in the incidents of 21 August 2015, including making a reference to Mr Watts and his team as “f***wits.” Having regard to all of the criteria, the FWC found that Mr Watt’s dismissal was harsh, unjust and unreasonable. The FWC stated that the dismissal was harsh because it was disproportionate to the gravity of the conduct he engaged in on 21 August 2015, unjust because Mr Watts was not guilty of significant matters that OCCPL relied on to conclude that he had engaged in serious misconduct and unreasonable because the conclusions about Mr Watts’ conduct were based on inferences that could not reasonably have been drawn from the material before Mr Sauer, the Operations Manager, who decided to dismiss Mr Watts. The FWC made an order for reinstatement of Mr Watts and an order for compensation, subject to a reduction of 25% for misconduct.

Bullying Behaviour Warranted Dismissal
Mark Kirkman (in the case of Kirkman v DP World Melbourne Limited [2017] FWC 5) made an application to the FWC for an unfair dismissal remedy. Mr Kirkman received a letter on 3 December 2014, which advised him of four allegations against him. These incidents involved Mr Kirkman directly targeting his colleague, Annette Coombe. It was alleged that Mr Kirkman: told his colleague Mr Zwarts that Ms Coombe “had her own agenda” and that “all she wants is a permanent EC job”; he also told Mr Zwarts that he had done the wrong thing by dropping out of the union and when Annette Coombe confronted Mr Kirkman about what he had said about her to Stephen Zwarts, he yelled at her words to the effect “even blind Freddy can see what you are doing… you want an EC job” and that he was “not going to cop that.” Mr Kirkman was terminated on 9 December 2014.

The FWC held that Mr Kirkman had bullied his colleagues – Ms Coombe and Mr Zwarts — within the meaning of the Discrimination Policy, and further, had bullied Ms Coombe within the meaning of the Code of Conduct. This conduct provided DP World Melbourne Limited with a valid reason upon which to dismiss Mr Kirkman. The FWC concluded that Mr Kirkman’s dismissal was not unfair and dismissed the application.

In this decision, the FWC noted that a previous finding that a group of individuals engaged in bullying conduct (which is repeated unreasonable behaviour) will not necessarily lead to the conclusion that any single individual by themselves, engaged in repeated and unreasonable behaviour. In May 2014, Ms Coombe, Ms Bowker and Mr Stephen Zwarts, made applications to the Commission for anti-bullying orders in relation to conduct that included conduct that occurred in 2013 and 2014. The persons named as having engaged in the bullying conduct included Mr Kirkman. The FWC noted that this finding that a group of individuals had engaged in bullying conduct does not lead to the conclusion that Mr Kirkman, as an individual, had himself engaged in repeated and unreasonable behaviour.

Sexually Explicit Conduct Valid Reason for Termination but Dismissal Harsh
Michael Renton (in the case of Renton v Bendigo Health Care Group [2016] FWC 9089) applied for an unfair dismissal remedy in relation to the termination of his employment by Bendigo Health Care Group. In August 2016 Mr Renton posted a video to Facebook in which he ‘tagged’ two work colleagues with the statement ‘Frank Christie getting slammed by Jo Keown at work yesterday!’ The video was sexually explicit in nature, involving an obese woman in her underwear dropping her stomach on to the back of a man on all fours, also in his underwear. At around the same time, Mr Renton left five blobs of white sorbolene cream and tissues on Mr Christie’s desk at work. Mr Christie took this to suggest that he or someone else had masturbated at his desk. Mr Christie complained about the Facebook post and the blobs of sorbolene cream on his desk.

Mr Renton was issued with a letter dated 9 August 2016 in which he was asked to provide a response as to his conduct in these two matters. At a meeting on 18 August 2016, Mr Renton admitted to the conduct (that he had tagged his colleagues in the Facebook post and had put the sorbolene cream on Mr Christie’s desk). After considering his explanation, Mr Renton was advised that a recommendation would be made to the CEO to terminate his employment.

The FWC stated that “Mr Renton’s conduct displayed an appalling lack of judgment and concern for the effect making such a post might have on his two colleagues.” Commissioner Bisset considered that by tagging work colleagues in the post, Mr Renton suggested that sexual activity had occurred at work between them. Consequently, these colleagues had a right to feel aggrieved at his conduct. The FC considered that Mr Renton’s conduct provided his employer with a valid reason to termination his employment as Mr Renton failed to display an appropriate standard of conduct in his dealings with his colleagues or his employer. On fine balance, the FWC concluded that the dismissal was harsh as it was disproportionate to the misconduct that occurred.

Dishonesty and Taping Employee to a Forklift Constituted Valid Reason for Dismissal
Mr Hastilow (in the case of Hastilow and Anor v Nestle Australia Pty Ltd [2016] FWC 9104) applied for unfair dismissal after Nestlé Australia Pty Ltd dismissed Mr Mark Hastilow and Mr Daniel Cornish on 31 August 2016 for serious misconduct. The two men were found to have taped Mr Harrison Bradshaw to a forklift, making him unable to operate fully and safely the forklift. Further, both were also found to have initially denied their involvement in the incident and only admitted their involvement when the denials became untenable. The FWC concluded that Mr Hastilow’s dishonesty during the investigation process, and Mr Cornish’s conduct both in taping up Mr Bradshaw and being dishonest during the investigation process means that there was a valid reason for their dismissal. The FWC stated “not every case where an employee is dishonest in an investigation results in his or her application for an unfair dismissal remedy being dismissed. However this dishonestly was not a case of a spur of the moment decision to deny involvement. Mr Hastilow persisted with this dishonesty after discussing it with others. More concerning, Mr Hastilow sought to involve his fellow employees in that dishonesty.” The FWC held that the dismissal was not harsh, unjust or unreasonable and dismissed the application.

Multiple Incidents of Aggressive Behaviour Valid Reason for Dismissal
Matthew Hughes applied for an unfair dismissal remedy (in the case of Hughes v Momentum Wealth P/L t/a Momentum Wealth [2016] FWC 9072) in relation to the termination of his employment by Momentum Wealth. Mr Hughes was dismissed following an investigation into his behaviour at a work social event held on Friday 1 July 2016. On 1 July 2016, Mr Hughes was involved in an incident where he pushed a patron of the bar onto the floor and then stood over him “with a clenched fist and his arm raised as if he was about to punch the patron.” Another staff member, Mr Cliffe, intervened to restrain Mr Hughes. Mr Hughes responded, telling Mr Cliffe to “get you’re f***ing hands off me.” Mr Hughes then verbally threatened Mr Cliffe, telling him never to touch him again. Mr Hughes was asked to leave the function by the Managing Director at lest three times and repeatedly refused to do so before finally agreeing to leave.

On Sunday, 3 July 2016 Ms Wakeman sent a text message to Mr Hughes’ work phone advising that he was to be stood down pending an investigation into the events of Friday, 1 July 2016. Mr Hughes however, was unaware of this text message and attended for work as usual on the morning of Monday, 4 July 2016. Shortly after arriving at work Mr Hughes came to see Mr Di Camillo and asked him what was going on and why was he telling people he wouldn’t be in. Mr Di Camillo told Mr Hughes that he had been stood down because of the incident at the work function on the Friday. Mr Hughes responded in an angry and aggressive manner. Mr Di Camillo said words to the effect to Mr Hughes of “mate take it easy, you’ve been stood down for your aggressive behaviour and now you’re acting aggressively towards me.” Mr Di Camillo told Mr Hughes to leave the premises, but he ignored this direction.

The FWC considered that there were several valid reasons for dismissal including: the conduct of Mr Hughes at the social club function on Friday, 1 July 2016, Mr Hughes’ conduct in standing over the patron who was on the ground in an unnecessarily aggressive manner, Mr Hughes threatening behaviour towards another employee of Momentum and Mr Hughes abuse of the Managing Director and initial refusals to leave when asked. Further, the FWC considered that Mr Hughes aggressive behaviour towards his manager Mr Di Camillo on Monday, 4 July 2016, his failure to leave the premises when his manager told him to do so and his rudely hanging up on Ms Wakeman, the General Manager, during their phone conversation were valid reasons for his dismissal. The FWC considered that the dismissal of Mr Hughes was not harsh, unjust or unreasonable. The application was dismissed.