What’s been happening in Australia in relation to workplace sexual harassment, discrimination and bullying from 16 – 22 November 2015

Unfair Dismissal Successful-Dismissal Disproportionate to Incident
Therese Schieh, a former ALDI manager has been awarded more than $37,000 by the Fair Work Commission after she was unfairly dismissed. ALDI submitted that her dismissal was based upon use of language including belittling and bullying of employees, however the evidence did not support this. In addition she used CCTV to survey staff members, but FWC was not satisfied that Ms Schieh had breached the CCTV policy, as the policy was unclear. In light of these factors the FWC determined the dismissal was unfair as Mrs Schieh did not engage in conduct which warranted the termination of her employment, as the response was disproportionate to the conduct that occurred.

Racial Discrimination-Australia Post
The Federal Circuit Court held that a courier, Viswanathan Murugesu, was subject to racial discrimination by John Boyle, a senior manager of Australia Post. Mr Murugesu had entered into an agreement with Australia Post to provide driving and delivery services. Mr Boyle was responsible for organising the loads for his truck. Justice Burchardt found that Mr Boyle racially abused Mr Murugesu. This abuse included references to Mr Murugesu being a “black bastard,” heavy-handed remarks about Mr Murugesu “going back to Sri Lanka” and remarks about “slave work.”

Further, the Court has found that Australia Post was vicariously liable. Although Australia Post had exemplary training and educational regimes, on at least 3 separate occasions he made complaints to managers at Australia Post who did nothing about it. The Court noted that this failure was so stark that it could not be said that Australia Post took all reasonable steps to avoid liability imposed by section 18A(1) of the Racial Discrimination Act 1975. Mr Boyle has since left the employment of Australia Post and the court has not yet awarded compensation to Mr Murugesu.

This case demonstrates that an employer’s responsibility to take all reasonable steps is not just about what they do before an incident occurs (ire preventative actions but what they do after an incident has been complained off (reactive steps)

All employers have a responsibility to take all reasonable steps to prevent their employees from acting unlawfully. If they don’t then they are liable for their employees actions. If you are an employer and do not know what all reasonable steps looks like then call franca on (08)6102 4411 for a complimentary risk assessment.

Discrimination Based on Parental responsibility
Vicki Aristidopolous, a former Fairfax Media marketing executive has commenced legal action after her role was allegedly made redundant while she was on maternity leave. Mrs Aristidopolous was due to return from maternity leave on a fulltime basis in October 2013, but the company underwent a restructure during October, and she was offered a redundancy payment. While the details are not known Ms

Aristidopoulos could argue that she was discriminated against because she was on maternity leave and that it was not a bona fide redundancy due to the alleged lack of consultation.

For a genuine redundancy, employees who are affected by the proposed changes must be notified and provided with information about the changes and expected effects.

The employer must also discuss the steps taken to avoid and minimise any negative effects on the employees and consider their ideas or suggestions about the changes.

Ms Aristidopoulos could also argue that her former job was being carried out by another person under a different title.

Amendments to the Fair Work Act 2009
Proposed amendments to the Fair Work Act 2009 have been approved by Parliament. The Bill included an amendment to parental leave. The Bill provides that an employer must not refuse a request to extend unpaid parental leave unless the employer has given the employee a reasonable opportunity to discuss the request.

DP World and MUA found liable for bullying
The Fair Work Commission (in the case of Bowker & Ors v DP World & MUA [2015] FWC 7312 ) has found that three stevedores at DP World have been bullied by their colleagues and members of the Maritime Union of Australia, and there was a significant risk they would face further bullying upon their return to work.

There was a total of 212 complaints in relation to allegations of bullying. The original incident involved a female stevedore making a complaint due to gossip being spread about her being in a sexual relationship with one of the supervisors. She made a complaint about this with another female stevedore being a witness. These two stevedores then became the subject of repeated inappropriate behaviour for the next 2 years. A third employee became involved when he acted as a support person for the first employee and was so disgusted by how she was treated that he resigned from the MUA. He then also started to be bullied.

In determining that there was a future risk of bullying the FWC accepted that there was a ‘Code of Silence’ that operated at DP World, where employees will not make complaints to DP World without first going to the MUA for fear of being labelled a ‘lagger’ (or dobber) or being ostracised in the workplace. DP World had not been successful in adequately dealing with the ‘code of silence’ which enabled bullying behaviour. Consequently the FWC made 8 orders against DP World to be implemented as quickly as is reasonably practicable. The main orders were-
1. requiring DP World to train its management staff in forensic investigative techniques,
2. review and amend its employee handbook and workplace behaviour policies, and complaint management policy
3. involve WorkSafe in the conduct of risk assessments
4. conduct a thorough assessment and return to work program for the 3 employees

Police Appear to be Victimising Employee
A policeman (sergeant) who was found to have harassed and bullied two female colleagues has been shifted to the same station as one of the victims. The behaviours included intimidating and ostracising actions as well as the policeman telling colleagues that all one of the female officers did at work was “sit around and suck the inspector’s toes.”

Despite this finding, the sergeant was not suspended and instead transferred to the same regional station as one of the victims who, as a result, has left work for mental health reasons. This second case demonstrates that an employer’s responsibility to take all reasonable steps is not just about what they do before an incident occurs (ire preventative actions but what they do after an incident has been complained off (reactive steps) best

Come on police, this looks like at best, incompetence and at worst another form of victimisation.

Facebook Post from Leo Burnett
There’se been a bit of an uproar this week when a female advertising contractor posted a criticism on facebook in relation to Leo Burnett recently hiring 5 white men for their advertising agency. She was met with a reply from
a staff person at Leo’s saying they wouldn’t give her work after posting this.

The ad and facebook posts raise a couple of questions.
One being why were there not some women in the mix of staff hired by Leo’s?

Women do make up almost 50% of the employment population so where were they on the day of the interviews and job offers?

The other issue it raises is employees who post comments on facebook without the permission of their employer which can then damage the reputation of the employer.

In this case an employer of Leo’s making comments she didn’t have authority to make which have placed Leo’s in an even worse light.

Employers need to have a comprehensive clear, social media policy in which it states what they can say as part of their employment duties and what they can post about their employer/work colleagues without suffering workplace disciplinary action.
To purchase an easy to customise social media template click here.