What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 9-15 May 2016

Age and Disability Discrimination Reasons

Willing to Work, a national inquiry into employment discrimination against older Australians and Australians with disability has revealed that the same excuses are being used to justify age and disability discrimination as were once commonly used to justify gender discrimination. These include that older people or people with disabilities are “unreliable, too distracted by family responsibilities, can’t handle high-stress jobs or won’t be able to work at a high enough pace.” Age and Disability Discrimination Commissioner Susan Ryan said that she was “enraged at the unfairness” that perfectly capable people in their 50s or younger are constantly being told they are “a bit long in the tooth for this job.”

Bullying Costs Australia $8 billion

Safe Work Australia has provided figures that Australian levels of bullying in the workplace were 6.8% in 2013. This was above international levels. Work pressure and work-related harassment made up more than 50 per cent of all mental stress claims. Further Safe Work Australia noted that per annum, depression costs Australian employers about $8 billion. $693 million of this is due to “job strain and bullying.”

Breaches of Code of Conduct warranted Dismissal
In the case of Masoe v MMA Vessel Operations Pty Ltd [2016] FWC 1178The FWC has held that Palestina Masoe was not unfairly dismissed from employment following incidents of aggressive behaviour, swearing and disrespectful behaviour towards his supervisors inconsistent with MMA’s Code of Conduct. MMA had introduced a Code of Conduct to eliminate a “culture of intolerance,” “lack of respect for employee dignity” and “bullying.” The introduction of the Code occurred towards the end of 2013 and was accompanied by training sessions that set out types of behaviour that MMA considered inappropriate.

In considering whether MMA had a valid reason for dismissal the FWC considered Mr Masoe’s receipt of a written warning, and two incidents of behaviour.

Written Warning
Mr Masoe received a written warning on 9 July 2014 for a range of behaviours that occurred on the same day which included yelling aggressively at team members, telling a Wharf supervisor to “f*** off and leave me along,” disregarding instructions and throwing his hard hat, yelling to the wharf supervisor, “you are a bunch of c****. At the meeting prior to the written warning, on 8 July 2014, Mr Masoe acknowledged these behaviours and that they were inappropriate and requested assistance in obtaining counselling. MMA responded to this request. The FWC noted that had MMA not responded, it may have been accused of being indifferent to Mr Masoe’s conduct and acting contrary to its Code, however in this instance MMA had adequately responded.

Event Statement Form Incident
Mr Masoe was asked by his employer to fill out an event statement form (ESF-which is a health and safety record form) after a picture of a 2 metre high penis and initials referring to another employee were drawn on a sea container on 30 December 2014. This incident was considered by the employer to be a potential incident of bullying or harassment directed towards that employee. When asked to write down anything he knew about the event, Mr Masoe drew a penis with a face on it and a stick figure looking at it and wrote: “I don’t know anything”. The FWC was satisfied that Mr Mascoe “considered the issue of a fellow employee being called a “prick” or “dick,” which he describes as classic bullying conduct – humorous, and inconsistent with MMA’s standards of appropriate behaviour expected of an employee in the workplace” as set out in the Code.”

Threatening Behaviour
It was also alleged that Mr Masoe engaged in threatening behaviour towards a fellow employee, Mr Patterson, on 27 December 2014. It was alleged that Mr Masoe was aggressive and made threatening remarks to Mr Patterson, including telling him “every dog has its day.” Mr Masoe says he was calm and measured in his approach but that MMA took Mr Patterson’s complaint more seriously than it was because Mr Masoe is a 6 foot 2 inch Pacific Islander, who weighs 130 kg. Mr Patterson was so concerned for his safety that he made an application for a violence restraining order and only withdrew it when Mr Masoe gave an undertaking to Mr Patterson that he would not harm his family or him.

The FWC found that the ESF incident, of itself, may not have been sufficient to reach a finding of MMA having a valid reason to dismiss Mr Masoe from his employment. However, the FWC noted that this was coupled with the threatening behaviour to Mr Patterson and less than 6 months earlier, Mr Masoe had been advised in writing of the need to comply with MMA’s Code of Conduct. The FWC noted that “when both incidents, which occurred in a relatively short period of time, are taken into account and the previous written warning to Mr Masoe about his behaviour, this conduct constituted a valid reason for termination. Accordingly the FWC found that Mr Masoe’s dismissal was not unfair.

This case highlights conduct by an Employer that held it in good stead when it came to defending its reasons for dismissing an employee for inappropriate conduct. Things the Employer did to minimise its risk were-
1. Implement a Code of Conduct
2. Train its staff in relation to the Code of Conduct
3. Hold its employee to account for previous inappropriate behaviours (a pattern was established)
4. Offer counselling to its employee to assist him in improving his behaviour (prior to dismissal)
5. Document the inappropriate behaviours
6. Follow its Grievance Process