What’s been happening in Australia in relation to workplace sexual harassment, discrimination and bullying from 20 – 26 July 2015

The FWC ruled that Linfox was within its rights to sack a worker who threatened his supervisors. Mr Tolevsky told one of his supervisors to “f*cken look at me in the eye” and “show me some f*cken respect.” According to his termination letter he was asked to calm down and stop being abusive, but became agitated and said “Linfox doesn’t give a f*ck about its employees.”

This is an interesting and contrasting case to some other recent cases where swearing at a supervisor was not considered sufficient to fire an employee. The distinction the court made in this case was the following-

“Were this matter a circumstance where an employee with an unblemished employment record had been subject to a work-related injury and then become abusive in a meeting of the type that took place on 19 December, it may well be that the collective circumstances do not amount to a sufficient or valid reason for termination of the employee. However in this case Mr Tolevsky had been subjected to written warnings about his conduct on two occasions during December 2014. This is far from an unblemished employment record. At the very least, by the start of 19 December 2014, Mr Tolevsky could reasonably have been expected to be aware that his employment future was uncertain if there were to be repetitions of the behavioural and capability issues for which he had been warned and that if nothing else he should be alert to a repetition of the things that Linfox considered were to be below their expectations. Reasonably Mr Tolevsky could have expected that had there been such a repetition serious consequences for him would likely arise. The employer’s concerns over Tolevsky’s work performance and abusive language amounted to a valid reason for ending his employment.”

In this case the court has taken the cumulative effect of some previous inappropriate behaviour for which he received two written warnings, coupled with the current abusive language, wrapped up in the situation where they gave him the opportunity to be heard and he presented as being dishonest and not credible in his answers. This case demonstrates how the totality of the fired person’s behaviours coupled with appropriate management of the behaviours is relevant to whether a dismissal is unfair or not.

The Workplace Gender Equality Agency is responsible for administering the Workplace Gender Equality Act 2012. The Act requires non-public sector employers with more than 100 staff to submit an annual report on a number of prescribed Gender Equality Indicators including gender composition of the workforce. The most recent data suggests that employers are not maximising female talent.

For example-the gender gap has increased to a record high of 18.8%. Employers are failing to take a strategic approach to gender equality. Only 13.6% have a strategy for flexible working; 13.2% have a strategy to support employees with family or caring responsibilities, and a mere 7.1% have a standalone, overall gender equality strategy. At board level, less than 1 in 10 organisations have set a target to lift the number of female directors, despite women occupying less than a quarter of directorships. In addition if workplaces wants to see more women in senior positions then they need to be providing more flexible parenting options for men to enable them to increase their active involvement in parenting.

The Victorian Government has announced $400,000 in funding to extend the Women with Disabilities Victoria Workforce Development Program on Gender and Disability. The program sought in part to address the level of abuse experienced by women with disability.

Women with disabilities are twice as likely as women and girls without disabilities to experience violence throughout their lives. Gender-based and disability-based discrimination combine to increase the risk of violence for women and girls with disabilities.

The burger chain Grill’d came under attack this week after a former employee claimed she was sacked after questioning her rate of pay. However, the burger chain insists that Pyrah was fired because she allegedly bullied two of her managers. The business has since announced that it would review its workplace arrangements in order to ensure employees were happy with their rates of pay.

Is this is a situation where bullying was raised as a smoke cloud to disguise the real issue?

A former Health Department employee has had her worker’s compensation claim rejected after asking her employer to pay $67,000 for projected life time costs for remedial massages and osteopathy treatment for PTSD. In 2009 an “unpleasant” relationship developed between Ms Topping and her manager, resulting in allegations of bullying and an argument in an elevator. Comcare accepted liability for Topping’s anxiety and PTSD at the time. But in 2014 Comcare said they were no longer liable for paying for these services.

The tribunal accepted this on the basis that the treatments did not address the underlying condition but relieved some of the symptoms only. For this reason the tribunal concluded that the ongoing treatment was not reasonable.

While the tribunal decided that Comcare were no longer responsible for paying for her remedial massage they had already paid $7000 for remedial massage up to this point. This case illustrates some of the consequences of bullying behaviour and the far reaching extent of what an employee can claim as a consequence of the harm suffered by them.

In a landmark domestic violence combined with mutual workplace case the FWC has ordered Eliana Construction & Developing Group, to pay compensation to a woman who was dismissed. The woman had an intervention order against her partner and they worked in the same company. The order did not permit him to go within 3 metres of her at work. The company decided it was too difficult to protect her and so they fired her (and not him!).

The Commissioner found the woman’s dismissal harsh and that the only reason for dismissal was she had a partner who worked in the same place and who was subject to a domestic violence intervention order. The company was ordered to pay $27,000.

This is a great case to highlight that women are often punished twice for being the victim of domestic violence and that an employer needs to consider its obligations to both parties and not just the male-well done Fair Work. It is also a warning to companies that do employ couples to beware of how they manage the work arrangement where the relationship breaks down.

Fair Work Australia received a total of 17,806 unfair dismissal claims from employees in 2014, amounting to 70 claims a day. While the laws originally existed to protect employees from unfair employers the laws have becoming increasing onerous on employers.

Many unfair dismissal cases I have read have been in favour of the employee because the employer did not conduct an investigation that followed the principles of natural justice before deciding to dismiss the employee. Even where the employee’s conduct justified dismissal the courts have held because of the (bad) manner in which the investigation was conducted the dismissal was unfair.

This is why it is so important that employers have a clear, concise, detailed Grievance Policy and Procedure and are trained in how to conduct an investigation.

If you have staff that have not been trained in how to appropriately conduct an investigation you will be leaving yourself open to potential unfair dismissal claims. EEO Specialists’ next public grievance officer course is on the 25th and 26th August. For more information click here.