Mining Executive Stood Down Amid Sexual Harassment and Bullying Allegations

A senior executive at Fortescue has been stood down while an independent external investigation examines allegations of sexual harassment and bullying made by an employee. The company engaged an external law firm to investigate the allegations, while ongoing, the executive will undertake no work for the company, with the company emphasising that no findings have yet been made.

The company is also facing a separate Federal Court class action brought by women alleging bullying and discrimination at its remote Western Australian operations.

The developments highlight the importance of promptly addressing allegations of sexual harassment and bullying and maintaining a workplace where employees feel safe to report concerns.

Major Sporting Organisation’s Duty to Act on Misconduct

Sydney Swans has sanctioned several employees following an alleged incident, at a hotel, involving sexual assault that also prompted a police investigation. The organisation imposed internal disciplinary consequences while the police investigation remained ongoing, making clear that its decision was based on breaches of internal conduct standards and was separate from any criminal findings. The club has sent a very clear message that they will hold their people to account, in spite of the potential consequences to the game.

The matter highlights that employers can take disciplinary or interim action independently of a police investigation, provided the internal and external processes are kept separate and employees are afforded procedural fairness. Employers should avoid making findings about criminal conduct before an external investigation is complete, while still taking appropriate steps to address workplace conduct concerns.

Court Clarifies Threshold for Reporting Suspected Sexual Assault at Work

Case: Agius v Monaro Mix Specified Concrete Pty Ltd [2026] ACTMC 10

Section 37A of the WHS Act (except Victoria) outlines notifiable offences, of which sexual assault is one. The new definition of “sexual assault incident” means that a PCBU is required to report “an incident (including a suspected incident) in relation to a workplace that exposes a worker or any other person at the workplace to sexual assault.”

The Court confirmed that “sexual assault” should be given its ordinary meaning and extends to deliberate sexual touching without consent. Accidental or incidental physical contact, however unwelcome, does not constitute sexual assault. On the meaning of “suspected incident,” the interpretation of “suspicion” from High Court authority requires a “positive feeling of actual apprehension or mistrust.” That is, it requires more than mere idle wondering. The suspicion need not be reasonably based, and a slight opinion will suffice. Once the relevant suspicion is held, the obligation to notify arises. Importantly, the Court confirmed that the amendments were not intended to capture (all types of) sexual harassment within the definition of sexual assault. The Magistrate rejected the prosecution’s submission that every allegation of sexual assault needs to be notified and stated that the central question is whether the PCBU in fact held a positive feeling of actual apprehension that a worker had been exposed to sexual assault.

The recent case involved an employee who alleged that a co-worker had ‘brushed past’ her breasts and invaded her personal space. While the complaint was raised with management, the Court found that the allegation did not clearly describe deliberate sexual touching and therefore did not necessarily give rise to a suspicion of sexual assault.

The decision provides important guidance for employers managing sexual misconduct complaints. While the threshold for reporting is relatively low, employers are not required to notify regulators of every allegation. However, once a genuine suspicion of sexual assault is formed, notification obligations arise immediately and cannot be delayed while the employer conducts its own investigation.

AHRC Calls on Employers to Treat Racism as a Workplace Safety Issue

The Australian Human Rights Commission has launched its ‘Change the system. Change the story.’ campaign, calling on employers to take greater action to prevent racism in Australian workplaces. The campaign encourages leaders to Listen, Learn and Lead by recognising racism as a workplace safety issue and addressing the systemic processes and workplace cultures that allow it to occur.

Research from the Diversity Council of Australia found that:

• Two-thirds of workers have experienced or witnessed racism at work, with almost half saying it is rarely treated as a workplace safety issue.
• Around 90% of Australian workers identify racism as a workplace problem and believe employers should take active steps to address it.
• Only 27% believe their organisation is proactive in preventing workplace racism.

The campaign encourages employers not to wait for complaints before acting, but to proactively identify racism as a potential workplace risk, listen to employees’ experiences, review workplace processes and culture, and implement measures to prevent harm. The Commission emphasised that racism can be embedded in recruitment, promotion and decision-making processes and cannot be addressed simply by expecting affected employees to be more resilient.

Digital Presenteeism Creates Psychosocial Risks for Australian Workers

New research involving more than 1,000 Australian office workers has highlighted the growing issue of ‘digital presenteeism’, where employees feel pressure to remain constantly available online to demonstrate their productivity and commitment. The research found:

• 75% of employees feel pressure to respond quickly to work messages to appear productive.
• 62% sometimes or frequently respond to work messages outside normal working hours because they believe it will reflect positively on their performance.
• 52% believe hybrid work has increased expectations that employees remain digitally available.
• Among employees who feel pressured to respond quickly, 48% believe the speed of their replies signals performance and 37% believe fast responses demonstrate engagement and contribution.

The research suggests that digital presenteeism may contribute to psychosocial risks by creating an ‘always-on’ workplace culture and blurring boundaries between work and personal time. Employers are encouraged to set clear expectations around performance and communication, establish reasonable response times, ensure leaders model appropriate communication practices, and provide employees with safe avenues to raise concerns about workloads and workplace technology.

Appearance-Based Hiring and Dress Codes May Create Discrimination Risks

Recent allegations that a world leading Luxury Products company in Paris only hired staff who were young, slim and conventionally attractive have put a spotlight on the legal limits of appearance-based hiring and workplace grooming requirements in Australia.

Only Victoria and the ACT have explicit legislation that protects against discrimination based on physical features. For the other states and territories appearance-based discrimination is only unlawful if it overlaps (indirect discrimination) with another protected attribute such as race/religion, gender, disability, age etc.

In addition, Australian employers can generally impose reasonable appearance and grooming standards where they are connected to a genuine business need, such as safety, hygiene or role requirements.

There are a string of Fair Work Commission and Federal Court decisions that show how fact-specific this area is. In Australian Telecommunications Commission v Hart (1982) 43 ALR 165, the Full Federal Court found an employer could lawfully direct a worker not to wear a caftan to work because of the impact on the organisation’s image, given the role involved customer contact.

In the XPT case – Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188 – the Full Bench affirmed that tribunals shouldn’t interfere with managerial prerogative unless a direction is unjust or unreasonable.

Grooming standards tied to safety have also been upheld. In Tasmanian Water and Sewerage Corporation v CEPU [2004] FWC 786, a requirement that an employee be clean-shaven was found reasonable because it was needed for a respiratory mask to fit properly.

Food-handling and safety concerns similarly supported the outcome in Woolworths Limited v Cameron Brown [PR 963023] (26 September 2005), where a butcher’s refusal to remove an eyebrow piercing was found unreasonable – though in a related Woolworths matter, a policy limiting piercings that caught out a worker with three instead of two was found harsh and unnecessary.

The 2013 case of Taleski v Virgin Australia International Airlines Pty Ltd t/a Virgin Australia [2013] FWC 93 is a further reminder: the FWC found Virgin was entitled to enforce its “Look Book” grooming policy, but doing so against an employee who had grown his hair long for religious reasons and later produced medical evidence of body dysmorphic disorder was harsh, unjust and unreasonable in the circumstances.

The Fair Work Commission has also criticised employers for referring to an employee’s body or appearance in inappropriate terms when enforcing uniform requirements.

Employers are encouraged to review the business justification for each appearance requirement, consult employees before introducing safety-related requirements, consider reasonable exemptions or accommodations, and train managers to address appearance issues by focusing on the policy rather than an employee’s body.

Federal Court Highlights Importance of Clear Policies on Political Expression

Case: Gillham v Melbourne Symphony Orchestra Pty Ltd (Liability) [2026] FCA 891

The Federal Court has dismissed a claim by a pianist and independent contractor who alleged the orchestra cancelled his performance because he expressed a political opinion about the Israel-Gaza conflict. The pianist made a statement during a performance alleging Israel had committed war crimes by targeting journalists in Gaza. The orchestra subsequently cancelled his next performance. He argued this amounted to adverse action as he was discriminated against based on political belief.

The pianist argued that he had a workplace right (under s 341 of the Fair Work Act) which was the benefit of the Equal Opportunity Act (EO Act) which protected him from discrimination based on political belief. While the employer accepted that the cancellation constituted adverse action, it successfully defended its decision by arguing the EO Act is not a workplace law under section 12 of the FW Act, therefore Mr Gillham was not protected against the alleged ‘adverse actions’. The accepted reason was that these laws applied to an employer-employee relationship and the pianist was a contractor. In addition, the employer also successfully contended that the political statement was not the principal reason for the cancellation.