What’s been happening in Australia in relation to workplace sexual harassment, discrimination and bullying from 23 – 29 November 2015

Discrimination Based on Muslim Faith
A member of the Australian Defence Force (referred to as Anthony John) has alleged that he has experienced repeated discrimination during his 13-year military career due to his religious beliefs. After converting to Islam, Mr John has alleged that he has been told he “will never be deployed or promoted because [he is a] security risk.” In 2013 a member of his unit posted on Facebook that all Muslims were “filthy,” “scum” and “worthless.” In 2014, Mr John approached the Army chaplain for advice after his request for flexible working hours over Ramadan was denied. The chaplain told Mr John to “find another job if he wanted to practise Islam properly.” The complaints are currently being investigated by the ADF.

Discrimination Based on Lawful Sexual Activity
The Victorian Civil and Administrative Tribunal has ordered that Padua College pay John Martin $90,000 compensation for discriminating against him with regard to his relationship with an 18-year old former student. Mr Martin’s employment at Padua College was terminated after 17 years after the principal discovered that Mr Martin was in a relationship with a former student. Mr Martin alleged that the College breach s18(a) and (b) of the Equal Opportunity Act 2010 (Vic) by directly discriminating against him by treating him unfavourably on the basis of a s6(g) attribute – lawful sexual activity. Noreen Megay found that this lawful sexual activity was a substantial reason for the decision to terminate Mr Martin’s employment.

This is an interesting interpretation of lawful sexual activity. Up until this case I have only seen it to mean protection for a sex worker. The respondent has used it in a completely different way, by saying I am in a lawful sexual relationship with an ex-student of the school and you have treated me less favourably (firing me) because of this. I would like to see if the court appeals this decision based on the way the meaning of lawful sexual activity has been interpreted.

Proposal to add Domestic Violence as a Protected Category to the Equal Opportunity Act (SA)
MP Kate Hildyard has pledged to update the Equal Opportunity Act (SA) to protect victims of domestic violence. About 800,000 women in Australia have been or currently are involved in domestic violence.

Discrimination against victims of domestic violence often occurs when an employer terminates a contract of employment because of problems stemming from abuse including absence from work due to injury and abusive partners appearing at workplaces.

South Australian Equal Opportunity Commissioner Anne Gale said that her office fielded a handful of cases concerning discrimination against victims of domestic violence, but felt that “because it is not a ground for discrimination, people don’t come to us a lot at the moment.”

Workplace Gender Equality Report
The Workplace Gender Equality Agency has just released its key findings for 2014-2015. The data is in relation to non –government employers in Australia with more than 100 employees. This involves about 12,0000 employers, with a total of 4 million staff, so about 40% of Australia’s working population.

More Australian workplaces are recognising domestic violence as a workplace issue with 34.9% of employers having a domestic violence policy/strategy. The Workplace Gender Equality Scorecard noted that employers were “slowly acknowledging their role in supporting employees experiencing domestic violence.” 13.5% of organisations train human resources staff to handle cases where employees experience domestic violence.

There has also been an increase in employer action to prevent sex-based harassment. The number of employers conducting management training on sex-based harassment has risen from 77.6% in 2013-14 to 81.5% in 2014-15. 97% of Australian employers have a policy and/or strategy on prevention of sex-based harassment.

Dismissal Valid for HR Manager
A human resource manager, was found to have been fairly dismissed after the FWC found that Mrs Wroughton had created a “climate of intimidation and fear” leading to a complete breakdown in workplace relationships.

Mrs Wroughton was dismissed following an independent investigation that found that there was “resounding evidence” that she had targeted and behaved aggressively towards co-workers. The investigation noted that Ms Wroughton had engaged in bullying including “humiliating others, using the silent treatment, unreasonably withholding information vital to effective work performance and taking action that makes competent employees appear incompetent in the hope they will resign.”

Mrs Wroughton claimed that adverse action had been taken against her due to either: her right to make a complaint that her boss, Mr Whitby had engaged in conduct that constituted sexual harassment; that she was suffering from a mental illness or her absence from work.

The Court found none of her allegations were substantiated.

This is a good example of where the employer has used an independent investigator, thereby removing themselves from any potential conflict of interest and the investigation was conducted well and as a result the court was satisfied that the reasons why the employer dismissed her were substantiated.

It is helpful for employers to have the option of using an independent investigator. Franca Sala Tenna, from EEO Specialists is a qualified legal practitioner and able to conduct workplace investigations. You can contact her on (08) 6102 4411.