What’s been happening in Australia in relation to sexual harassment, discrimination, and bullying: June 3-9, 2024

Australian companies ignorant of new sexual harassment laws 

Almost a dozen large Australian companies and government departments have been the subject of significant sexual harassment complaints in 2024. However, many companies are ignorant of a change in law from earlier this year which puts a positive duty on companies – big and small – to prevent workplace sexual discrimination and sexual harassment. 

Sex Discrimination Commissioner Anna Cody was interviewed by Sky News Business Editor Ross Greenwood about what this change in law means for workplaces across Australia.  

Company fined, convicted in bullying prosecution case

This incident occurred in August 2021 where the director was abusive, yelled and swore at a subcontractor over the phone when he questioned working during COVID-19 lockdowns. A subsequent investigation conducted by Worksafe Victoria revealed that other workers had also been subjected to bullying behaviour by the director. 

In the Victorian Magistrates Court, Worksafe Victoria set out that the employer’s anti-bullying policy and procedures were lacking because they did not provide: 

  • information about how to report inappropriate workplace behaviour
  • definitions or examples of bullying
  • workers with any anti-bullying training

Worksafe Victoria maintained that it was reasonably practicable for the employer and the director to provide and maintain a safe system of work for identifying, reporting, investigating and stopping inappropriate workplace behaviour, including workplace bullying. Both the employer and the director pleaded guilty, and each were fined by the Victorian Magistrate Court $20,000 (total of $40,000) and ordered to pay $9,309 in costs.  

This prosecution highlights the fact that employers – including officers and other workers – can be prosecuted resulting in criminal convictions and penalties for work health and safety breaches. 

Journalist Antoinette Lattouf scores a win in unfair dismissal case against ABC 

Journalist and presenter Antoinette Lattouf was taken off air from a casual presenting role on ABC Radio Sydney in December last year, three days into a five-day spot at the public broadcaster. It came after she shared a post from Human Rights Watch claiming Israel was using starvation as a weapon of war in Gaza.

In Lattouf’s submission to the FWC, she argued she was unlawfully terminated on the grounds of political opinion and the grounds of race. In a decision handed down on Monday, the FWC dismissed the ABC’s argument that it did not sack Lattouf because it paid her for all five shifts. The FWC said it found that the employment relationship between the Lebanese-Australian journalist and the ABC was terminated at the ABC’s initiative and the matter could now proceed to the next hearing related to whether the dismissal was unlawful. 

Manager made redundant while on leave: is this unfair? 

The FWC recently dealt with an unfair dismissal case involving a worker who was made redundant by her employer. The worker claimed that the redundancy was not genuine and that the employer did not follow the Small Business Fair Dismissal Code. The employer argued that the dismissal was a genuine redundancy and was consistent with the Code. 

In this case, the worker was made redundant while she was on annual leave. Upon her return to work, she was informed of her redundancy in a meeting with the employer’s director and an external representative from an accounting and tax agency. The worker argued that she was not consulted about the redundancy and that there was no genuine consideration of redeployment.

The Commission found that the employer had failed to comply with its obligations under clause 38 of the Clerks – Private Sector Award 2020, which required consultation with the worker about the major workplace change.  

The Commission concluded that the termination of the worker was unfair because the employer failed to consult with her about its decision to terminate her employment before putting that decision into effect. It determined that a reasonable period to allow the worker to respond to the advice of the decision would have been in the order of two days.

This decision emphasises the significance of adhering to proper consultation procedures when making employees redundant, even for small businesses.

Tribunal quashes pregnant solicitor’s discrimination appeal against employer 

The Civil and Administrative Tribunal of New South Wales recently dealt with an appeal regarding a case of alleged unlawful discrimination. The worker, a solicitor who had been employed by the employer through a series of back-to-back short-term contracts, claimed that the employer’s conduct amounted to indirect discrimination on the grounds of pregnancy, sex, or carer’s responsibilities. The Tribunal had to determine whether the employer’s decision not to offer the worker further temporary employment contracts immediately following the expiry of her previous contracts, at the times of her pregnancies, constituted unlawful discrimination under the Anti-Discrimination Act 1997 (NSW). 

The worker argued that the employer’s actions subjected her to detriment and that she was treated less favourably due to her pregnancy and carer’s responsibilities. The Tribunal found that the worker’s temporary employment during the relevant period was not an ongoing funded role or position. It accepted that the employer regarded having a temporary employee undertake that work as not a long-term or sustainable solution because it was not funded. 

The Tribunal noted that towards the end of the worker’s employment in the insurance work role, there remained a need for someone to perform the work as the matters handled had remained high and become more complex. The employer had an available senior employee solicitor who was competent, experienced, and in a permanently funded position who could perform the work and wished to do so, although he had to transfer from another office to achieve that. The Tribunal also noted that the worker had accrued an entitlement to 14 weeks of paid leave at the time of her first pregnancy. However, the employer was not obliged to pay out any unused leave at the end of the temporary employment contract. 

In summary, the Tribunal found that the employer’s decision not to offer the worker further temporary employment contracts immediately following the expiry of her previous contracts did not amount to unlawful discrimination under the Anti-Discrimination Act 1997 (NSW) because it had a valid non-discriminatory reason for not offering further temporary work.

‘Mentally Ill’ worker claims unfair dismissal amid serious misconduct allegations 

The FWC recently dealt with an unfair dismissal application filed by a worker who was summarily dismissed for serious misconduct on 21 December 2023. In this case, the worker argued that his dismissal was unfair, while the employer maintained that the termination was justified due to the worker’s serious misconduct.  

The FWC found that there was a valid reason for the worker’s dismissal, but not for the precise reasons identified by the employer in the termination letter. It determined that the worker committed a serious breach of his statutory and contractual obligations concerning safety at work when he drove to the worksite and performed work while unfit due to serious mental health issues.

The FWC did not find the other reasons outlined in the termination letter to be valid reasons for dismissal. It also found that the worker’s absences were not a valid reason for dismissal, although it accepted that the worker failed to provide sufficient medical evidence to explain all his absences. The FWC considered that the worker should have been absent from work at all relevant times before his dismissal because he was unfit to work due to a serious mental illness. 

Consequently, the FWC found that the worker was not unfairly dismissed. However, the employer was ordered to pay his accrued leave entitlements. The case highlighted the importance of considering an employee’s fitness for work and the potential safety risks associated with an employee performing their duties while experiencing serious mental health issues. 

Stan executive left Nine’s streaming business after workplace claims 

Stan’s publicity chief left the business weeks after it began an investigation into allegations of inappropriate workplace conduct, months before another Nine Entertainment executive exited amid sexual harassment claims. Adrian Foo, Stan’s long-time head of communications, left on May 28 last year after an internal investigation began to probe allegations of bullying and physical contact that made staff uncomfortable. Stan is the streaming platform owned by Nine. 

The allegations against Mr Foo were made by at least five current and former Stan staff. They allege that they were the victim of, or witnessed, Mr Foo’s bullying. Two say Mr Foo would make them feel uncomfortable by hugging them, touching their knees or holding their shoulders.  

Nine has already been under considerable scrutiny over the departure of Darren Wick, the company’s former director of television news. He stepped down in March after an absence from work. The Australian, The Sydney Morning Herald and Sky News have detailed allegations of sexual harassment against Mr Wick from current and former female employees.

Nine entertainment orders sexual harassment prevention training for employees 

Nine Entertainment employees have been mandated to undergo sexual harassment prevention training as part of the organisation’s next steps following harassment allegations against its former news boss, according to reports.

Employees would be required to accomplish the refreshed sexual harassment prevention training by June 30, ABC News reported, citing an internal email. The training mandate comes after allegations of inappropriate behaviour involving Darren Wick, and Adrian Foo. 

In the email obtained by ABC, Nine acknowledged the trauma that staff suffered due to inappropriate behaviour in its leadership team. The company added it would carry out a survey to determine the prevalence of sexual harassment, bullying, and inappropriate workplace behaviours in its workplaces. The email came days after Nine Entertainment announced that it commissioned an independent review of its workplace culture following the allegations against some of its former leaders. 

Exclusion emerges as the most common anti-social behaviour in tech sector – especially for women 

Tech and IT professionals across Australia have reported that being excluded is the most common anti-social behaviour they’ve experienced in the workplace, according to new research. Findings from Professionals Australia’s latest survey on workplace trends in the tech sector revealed a “variety of anti-social behaviour” at work. These include exclusion, bullying, discrimination, and sexual harassment. 

According to the report, those who stayed with their employer after their most recent anti-social experience are most likely to not report the incident to their organisation. They were also more likely to deal with the matter informally. The findings come as issues related to workplace culture is the most cited reason of female employees on why they’re leaving the IT profession. Women also attributed their plans to leave to the lack of recognition or opportunities and discrimination or bias in the workplace, according to the report. More women are also citing parenthood as reason for leaving the industry when compared to men. 

More protections under the Fair Work Act 

It is good to remember there are even more protections in the Fair Work Act (FWA), for vulnerable people. Since 7 December 2022, gender equality and job security have been included as statutory objectives of the FWA. That means that every provision of the FWA must be interpreted consistently with the purpose of gender equality and job security. With the rationale of addressing gender pay gaps, the federal Government has prohibited efforts by employers to require employees to treat their remuneration as secret and, three new protected attributes were added to the existing protected attributes under the FWA. These are: 

  • breast-feeding
  • gender identity
  • intersex status

These protected attributes align the FWA with the attributes in the Sex Discrimination Act 1984 (Cth) and other Commonwealth anti-discrimination legislation. 

The Government has introduced measures for greater entitlements to flexible work arrangements. Since 6 June 2023, employers have been required to provide a response to an employee’s request for a flexible working arrangement within 21 days. Employers cannot refuse the request unless it has been discussed and the refusal is on reasonable business grounds. Employers must also explain the grounds for the refusal in a written response and where no agreement is reached, the FWC can deal with the dispute. The additional new grounds to request a flexible working arrangement now include pregnancy and family or domestic violence. 

The FWA was amended to prohibit sexual harassment in connection with work, including in the workplace. The protection applies to ‘workers’ including employees, contractors, work experience students and volunteers, prospective workers and PCBUs (persons conducting a business or undertaking). Since 6 March 2023 FWA has included definitions of ‘sexually harass’ and ‘sexually harassed at work’.