What’s been happening in Australia in relation to workplace sexual harassment, discrimination and bullying from 27 July – 1 August 2015?

A truck driver failed in his claim for workers compensation because his injuries were found to have been caused by his own wilful misconduct. The truck driver Mr Duckworth had been harassed at work by his co-worker, who called him names and pretended to cry over the two-way radio. Mr Duckworth reported this conduct to the business director who said, “if you want to sort it out outside of work that’s your business”. The harassment subsequently resulted in the two men going “toe-to-toe”, yelling and swearing at each other. Mr Duckworth punched his co-worker in the jaw and then he was punched and he fell backwards and hit his head on concrete suffering serious head injuries. The company had a policy that fighting at work would result in dismissal. The Commission said that by engaging in a fistfight with another employee, his injuries did not arise out of the duties he was employed to do.

I have a problem with this decision as the employer had been put on notice that Mr Duckworth was being harassed by a co-worker and the employer did nothing to sort it out. Even though Mr Duckworth acted recklessly in hitting his co-worker I would have thought there would have been joint liability between the employee and the employer for not acting to prevent the behaviour from escalating.

A former Suncorp claims officer was fired for poor performance and subsequently made a successful unfair dismissal claim through Fair Work.

Fair Work said that even though Suncorp had a valid reason for dismissing him due to poor performance and had previously informed him of the likelihood of dismissal the dismissal was unfair because they didn’t take into consideration his mental health issues when deciding if this was a contributing factor to his poor performance.

Suncorp argued that they did not know about his mental health issues but Fair Work held that there was enough evidence such as a 23% absentism rate from normal employment (as well as other information) to infer that he had a mental health issue. The commission said, “While great effort was gone to in documenting Mr Burke’s undoubtedly poor work performance, there was little if any effort expended on considering whether whatever health issue he was suffering, was impacting on his work performance.” This was a failing of Suncorp which cost them a costly legal process and $8400 in compensation.

This case is a costly reminder to employers to ask the question to their employee- “Are there any mental health issues that are affecting your ability to do your job?” If the answer is yes then an employer needs to make reasonable accommodations to the employee and/or to consider this factor before terminating an employee for poor performance.

What I find most interesting is that even though FW found that the employer should have taken the employees mental health issues into consideration it then goes on to say when assessing compensation that, “Even if a further investigation about the possible impact of Mr Burke’s health issues had been conducted, the outcome of the investigation would not have been any different.” Strange?

Victoria’s small business minister, Adam Somyurek was forced to resign after a report he had grabbed his chief of staff by the arm and chin. Somyurek has blamed a union revenge plot for these bullying allegations forcing him to resign. He has denied these allegations and that he touched the employee.

Adam Goodes is the victim of workplace bullying and racial vilification, according to one workplace lawyer, Andrew Farr. It is a hostile environment in which Goodes has to play sport and is creating a clear workplace health and safety issue. This type of booing is different to the “one-off” booing of umpires and other athletes. It is specifically targeted to send a message to Adam that the crowd does not agree with what he stands for. However, sport is an unusual workplace, so Adam is unlikely to have legal remedies available to him. But sport is still a workplace, and sport still has to live up to Australian community standards.

“In the absence of a legal solution we need an educative solution. And that’s why the AFL has to stand up and say bullying is unacceptable in our game,” says Farr.

The annual bill for bullying, harassment and “occupational violence” in the public sector is now approaching $80 million. Trauma from workplace bullying makes up the largest proportion of mental stress compensation claims as highlighted by the latest data from federal workplace insurer Comcare. Mental-stress workers’ compensation claims are now costing $342,000 each on average and Nearly 39 per cent of claimants in 2013-2014 said bullying or harassment by their colleagues had left them unable to work. Another 8 per cent of mental-stress claimants said they had been traumatised by “exposure to workplace or occupational violence”, with 40 such claims accepted in the 2013-2014 financial year.
The 233 claims linked to bullying or violence accepted by Comcare in 2013-2014 will cost the taxpayer more than $79 million on present trends.

When one worker’s compensation claim for bullying costs on average $342,000, it makes sense to spend $20,000 on educating staff about appropriate workplace behaviours. If you want to know more about the training services EEO Specialists offer, call Franca on (08) 6102 4411.