What’s been happening in Australia in relation to workplace sexual harassment, discrimination and bullying from 17 – 23 August 2015

Paid Parental Scheme
This week Elizabeth Broderick has said that Australia’s paid parental scheme needs to be improved rather than wound back. The Abbott government plans to crackdown on so-called “double dippers”, which will put limits on new parents accessing both the government scheme and employer provided leave.

Gender Pay Gap

When we talk about the gender pay gap there are two relevant comparisons. The first is the difference between the way traditionally female roles and male roles are valued. For example, nurses are paid on average $1220 per week while engineers are paid $2019 per week. The second is the pay gap that exists within the roles based on gender, so female nurses are paid 30% less than male nurses and female engineers are paid 47% less than male engineers. In addition when we look at average weekly earnings based on gender at the lower end, where people are earning less than $1000/week, the gender split is 50/50 but at the top end, where people are earning over $2500 per week only 16% are women.

Bullying Case-Fair Work Commission
A site manager at building company Metricon has lost his bullying claim. Mr Hammon made numerous claims against Metricon and two of his managers. He claimed increases in his pay were unfairly delayed (not proven); he was not given the opportunity to transfer to an area with greater career opportunities (not proven) and was the subject of trivial and targeted OHS breach allegations (valid reasons for the breach reports).

Commissioner Roe found that several “unreasonable” incidents did occur, such as-
1. An offensive photo of a dwarf with his name written on the photo was displayed on the wall in the office (other staff were also portrayed in a similar fashion) and the Manager failed to remove it.
2. Hammon being called a “lackey.”
3. One of his managers suggesting in an email that Hammon’s pay should be delayed to show him how contractors feel when they don’t get paid if he fails to complete paperwork.
4. The arm wrestle incident at the 2014 end of year function and the failure of management to pursue this matter after finding it was substantiated.

Commisioner Roe went on to say that, “These incidents were not the major issues raised by Mr Hammon. I have found those major issues did not constitute unreasonable behaviour. Mr Brand is only responsible for one of the incidents which I have found to be substantiated and this failure to act was not directed specifically against Mr Hammon. As there is no repetition, there is no basis for a bullying finding against Mr Brand. Mr Grant is only responsible for one of the incidents. By itself it is not particularly serious and it was not repeated and therefore there is no basis for a bullying finding against Mr Grant. I am not satisfied that Mr Fennessey, Mr Brand, Mr Grant and Mr Cooper were acting in concert to harm Mr Hammon. Considering the four substantiated matters as whole I am not, on balance, satisfied that the test of “repeated unreasonable behaviour while at work” is met.”

This case provides some interesting insights into what constitutes inappropriate behaviour, the usefulness of management taking notes when a complainant makes a complaint, the use of data to demonstrate an employee is not being targeted re overworked, compared to others and management needing to act when an allegation is substantiated without requiring the complainant to make a formal complaint first.

Firing Someone via Text Message

The recent decision by Hutchinson Port to dismiss employees by text message has raised issues relating to terminating employment. Under the Fair Work Act an employer must give an employee written notice of termination.

Past decisions have held that a text message may comply with the written notice requirements under the Act.

The bigger risk is whether dismissal by text may be held to be unfair. The Act provides in essence that a finding of unfair dismissal will not be available where the dismissal was a case of “genuine redundancy”. Part of genuine redundancy requires that- the employer has complied with any obligation in a modern award or enterprise agreement to consult the employee about the redundancy”. This is probably the more relevant issue and not whether they were dismissed by text or not.

Adverse Action Claim not Proved
A former restaurant manager who claimed he was dismissed due to his sexual orientation has had his adverse action claim thrown out by the Federal Circuit Court. Mr Mak claimed his employment was terminated because of his relationship status. The business owners disputed this arguing that Mak had trouble running the restaurant and was looking for other work. A text Mak sent to his boss asked for a $5000 payout figure during his ‘final week’ of work. The Court held the reason for Mak’s dismissal was because of the respondent’s concern as to his work performance; it was not for any prohibited reason under the Fair Work Act. In this case Mak failed to put forward any evidence required to establish his case.

This is a great reminder for employers to document their concerns about an employee’s performance because in an adverse action claim the employer is the one that needs to prove they did not discriminate against the employee.

Unfair Dismissal Despite Physical Altercation
Mr Gwatking, an employee of Schweppes, successfully challenged the termination of his employment, notwithstanding that he was found to have actively participated in a physical altercation. The incident arose after another employee threw a bottle near Mr Gwatking. As the bottle wasn’t capped the contents sprayed on him. Mr Gwatking retaliated by throwing a half bottle at the other employee, which did not hit him. A heated verbal exchange followed. This then escalated and punches were thrown (although none connected) and the two pushed and shoved each other. Other employees intervened to break up the fight.

Commissioner Hampton said both men were equal participants. Schweppes suspended both men on pay and investigated the incident. Schweppes found that both men were involved in a serious incident and breached numerous company policies and both men were terminated. The Commission found that “an overall assessment” is required in relation to Mr Gwatking’s employment. As Mr Gwatking had served the company for over 30 years, was more than 50 years old and had a narrow skill-set this represented a significant mitigating factor. As was the fact the other employee provoked him. The Commission concluded the dismissal was harsh and compensation was therefore determined to be the appropriate remedy.

Reasonable Adjustment-High Standard for Public Sector
A former employee at Corrective Services NSW has been awarded more than $170,000 in compensation after it was found she had been unlawfully discriminated against. The Court found Corrective Service failed to make “reasonable adjustments” to Ms Huntley’s work duties after she was diagnosed with Chrohn’s Disease, which is considered to be a disability under Australian law. Ms Huntley was unable to drive for long periods of time without scheduled breaks. A return to work plan was put in place but after 6 months Ms Huntley was advised the arrangement could not continue due to the constraints it placed on workplace operations. She was then asked if she would prefer to be redeployed or retired. She asked to be redeployed. A number of positions were available, however, Huntley declined saying they did not suit her physical needs. After another 2 years she was told Corrective Services was not required to secure her an alternative position and would not provide any adjustments to her current job. Nicholls J found Huntley was entitled to compensation for pain and suffering, along with a breach of contract. Employers have an obligation to help an employee fulfil their duties.

Interesting decision and one which demonstrates that the courts place a much greater obligation on public service employers than on the private sector for a range of reasons.