What’s been happening in Australia in relation to workplace sexual harassment, discrimination and bullying from 28 September – 4 October 2015

The FWC has upheld Kimberley Ports Authority’s (KPA) decision to sack an employee who turned up to work with alcohol in his system the day after Australia Day. Mr Ward was required to operate a forklift as part of his role which required him to have a zero blood alcohol reading. A random alcohol breath test at 8.30am taken shortly after he had been operating a forklift showed he had a blood alcohol reading of 0.026%, Ward was sent home and a week later was notified that he would be dismissed because he had breached the company’s workplace policies. Ward took his case to the Commission and tried to argue that he had made a genuine mistake. This was rejected and his application was dismissed.

Well done KPA who had a clear zero tolerance alcohol policy in place which had been explained and was explicitly agreed to by employees and they also had self testing alcohol breathalysers on site for all staff to use before commencing employment and for having good policies and procedures in place. This is a good example of a situation where an employer managed the situation well with the right outcome being decided by the court.

In a recent decision the Full Federal Court has reminded employers that an allegation of racial discrimination should be taken seriously and if substantiated lead to appropriate disciplinary action. Ms Vata-Meyer was an indigenous employee at the Commonwealth Department of Education in its Graduate Recruitment Program. She commenced an application in the Federal Circuit Court alleging racial discrimination by a number of her colleagues and that the Commonwealth was vicariously liable as her employer. The allegations included that one colleague offered her a packet of Chico lollies and said, “have some black babies”. Later in the afternoon another colleague who had been discussing the difference between Camembert and Brie called out “I like Coon” in her presence. Ms Vata-Meer complained and following an investigation her colleague apologised for making the comments. Ms Vata-Meyer was not satisfied with the investigation and made a written complaint.

At first instance the Circuit court found that the response to her allegations had been adequate and appropriate to the circumstances. However, the Full Court overturned the initial decision on the basis the primary judge failed to apply the correct test. It held that the actions of the colleague should have been assessed separately from the subsequent investigation by the Department management. The Full Court remitted the matter to the Federal Circuit Court for a retrial.

A Cadbury worker has been awarded $20,000 compensation and the possibility of another $250,000 after it was ruled he was unfairly dismissed. Mr Dziurbas was told he was no longer fit to do his job after he recovered from a hernia operation. The VCAT held that Cadbury had “failed to assess properly Mr Dziurbas’s condition, what Mr Dziurbas’s job actually entailed, or to make adjustments to the job” so that he could continue working.

This case is about disability discrimination, what reasonable accommodations the employer has a duty to make and whether with these accommodations the employee is then able to do the inherent requirements of the job. It also questions the character of Cadbury’s after firing a loyal employee of more than 30 years to the company.

The South Australian Industrial Relations Commission has awarded a reduced unfair dismissal payout to a librarian who sent “damaging and derogatory” text messages about his employer. Mr Winship was awarded only 6 weeks pay as compensation for his dismissal after seeking 6 months pay. Winship was frustrated that his bosses did not appreciate his work and felt his team didn’t respect him. He took sick leave and sent text messages to 4 employees criticising his bosses. When Winship’s managers found out about the texts he was asked to attend a meeting and respond in writing to allegations of misconduct. Winship attended the meeting and claimed the texts were not wilful, malicious or disparaging but were one-off expressions of frustration. However, he was dismissed on the basis the texts contravened the Code of Conduct. The Commission found that while there was a valid reason for dismissal the way he was dismissed was procedurally unfair.

Yet another case where bad management of the investigation has resulted in an unhappy outcome for the employer despite inappropriate behaviour from the employee being established.