What’s Been Happening in Australia in Relation to Unfair Dismissal, Sexual Harassment, Discrimination and Bullying from 5 Feb – 11 Feb 2024

Employee accused of misconduct reinstated following ‘deeply flawed’ investigation

The Fair Work Commission (FWC) has reinstated an employee of a mining company after his employer failed to conduct a thorough investigation into allegations of misconduct.

The decision is a reminder for employers to ensure that they have the necessary expertise and procedures in place before conducting internal workplace investigations, particularly when there is conflicting witness accounts and limited documentary evidence.

In March of 2023, the applicant was accused of instigating sexually explicit conversations with other male colleagues and sharing pornography on his mobile phone on a bus ride at the end of a work shift.

Following its investigation, the respondent terminated the applicant’s employment on the basis that he had engaged in “inappropriate conduct of a sexual nature towards new female trainees.”

The FWC held that the respondent did not have a valid basis for dismissing the applicant and ordered that he be reinstated with backpay.

Race discrimination commissioner appointment

An employment lawyer from Queensland will start as Australia’s race discrimination commissioner in March.

Giridharan Sivaraman has been named the next race discrimination commissioner. His five-year tenure with the Australian Human Rights Commission (AHRC) will commence on Monday, March 4.

“Mr Sivaraman is a widely respected champion of racial equity,” Croucher said…. “His lived experience, passion for diversity and inclusion, and deep understanding of human rights and Australian discrimination law mean he will be a powerful asset for the commission during what is very much a delicate time in the country.”

Attorney-general Mark Dreyfus noted that in his new role, Sivaraman would be responsible for combatting all forms of racial discrimination and promoting understanding, tolerance and harmony across all sectors of Australian society.

Perfection 12: Farmworkers turn activists release album amidst sexual harassment lawsuit

In a bold move that intertwines music, activism, and the quest for justice, twelve women farmworkers from Australia, known as ‘Perfection 12’, have released an album of songs. This initiative comes amidst their ongoing legal battle against Perfection Fresh, a leading horticulture company, over alleged sexual harassment.

The women, all members of the United Workers Union (UWU), filed one of the largest sexual harassment cases in the Federal Court. Their journey began on the farms of Perfection Fresh, where they claim to have endured a hostile work environment rife with sexual harassment.

In an unprecedented move, they’ve chosen to amplify their voices through music. The album, a powerful blend of their experiences and aspirations, features eight tracks, including a reinterpretation of the historic ‘Bread and Roses’ song.

The 7th of Feb was the second anniversary of the day the government adopted former Sex Discrimination Commissioner Kate Jenkins’ Set the Standards report, after its release in November 2021.

The recommendations in the Set The Standards report were intended to be adopted within 12 months. With the Independent Parliamentary Standards Commission (IPSC) now delayed until October 2024, an enforcement body to uphold the codes of conduct for parliamentary behaviour will be almost two years overdue.

As stated by Greens leader in the Senate and spokesperson on women Senator Larissa Waters:

“When former Sex Discrimination Commissioner Kate Jenkins released the Set the Standard Report in 2021, the recommendations were intended to be fully implemented within 12 months – not 3 years. “I am proud of the progress that has been made, but we still need an Independent Parliamentary Standards Commission (IPSC) to enforce codes of conduct.

“The timeframe for that IPSC was first extended until February, and has now blown out 1 whole year until October 2024”.

A Qantas female pilot has returned to the Federal Court in a fight against her employer, asking to file an updated case maintaining claims the company is “hostile to women”.

Davida Forshaw, who is still employed by Qantas, first lodged her case against the company in October 2022 claiming “improper conduct” towards her and a “sexist culture” had impeded her career. On Wednesday, Ms Forshaw’s lawyers brought an application for leave to file an amended statement of claim after Federal Court judge Leslie Snaden ruled last year nine paragraphs in her original claim should be dismissed, but not the entire case.

Ms Forshaw, an advocate for gender equality and employee of Qantas for 23 years, has alleged in 2006 a male captain told her she would “do a lot better” if she wore a push-up bra and dyed her hair blonde.

Other EEO news:

Health conditions (particularly mental health) account for an increasing proportion of serious workers’ compensation claims.

More than 20 million Australians have at least one long-term health condition, 63% of whom are in the workforce.
The causes of chronic illness are complex and are often unconnected to a person’s work. But at times, continued exposure to work stressors can lead to or exacerbate chronic health conditions including musculoskeletal disorders, heart disease, anxiety and depression.

Our research found that 73% of people believed their chronic illness was at least partially caused or worsened by their job. Almost one in five people believed work entirely caused or worsened their illness. These findings accord with data from Safe Work Australia which indicates health conditions (particularly mental health) account for an increasing proportion of serious workers’ compensation claims.

Our research also found people with chronic illness were likely to report various forms of workplace discrimination, including being rejected from a job (63%), being treated unfairly in the workplace (65%) and harassment (52%).

Australia set to introduce right to disconnect

The Australian government is set to make the right to disconnect a reality for Australians as the Senate passed the second Closing Loopholes bill despite strong opposition from employers.

In deciding for reasonable contact, the party said factors including reason for contact, the level of contact, compensation, job role and responsibility, and workers’ personal circumstances will be considered.

“Where the issue cannot be resolved at the workplace, and the behaviour continues, the Fair Work Commission can issue stop orders,” the party said in a previous statement. “If they are breached, the normal civil remedies of the Fair Work system will apply.”