Court allows 15-year-delayed sexual harassment case to proceed against employer
The County Court of Victoria recently dealt with a case involving a worker seeking to extend the time limit for bringing a damages claim against her former employer. The case revolved around allegations of workplace sexual harassment and the subsequent psychological impact on the worker.
The worker argued that her severe psychiatric conditions, stemming from the alleged harassment, had impacted her ability to pursue legal action within the standard time frame. She also claimed that her previous legal representatives had failed to properly advise her about the time limits associated with her common law rights.
The employer, on the other hand, argued that granting an extension would cause significant prejudice due to the passage of time, altered premises, and potential memory loss of witnesses.
The worker said that she experienced sexual harassment from a co-worker in 2010. The Court heard that the worker suffered from severe psychiatric conditions following the alleged incidents, including major depressive disorder and severe panic disorder with agoraphobia. The worker who started at the company in 2005 said that at the start of 2010, a co-worker began to sexually harass her. This involved brushing against her and touching her hands. On 23 February 2010, she said that the co-worker made a comment directly to her that she had “beautiful breasts”. On another occasion, he allegedly gave her an unwanted gift.
The workplace became aware of the issue in about March 2010. By April 2010, she began to take days off work and ended work in October 2010. She has not worked since then in any capacity.
Despite the worker’s mental health struggles, the Court found that her psychiatric condition did not significantly impair her ability to understand legal advice. The Court also examined the legal advice provided to the worker by various law firms. It was found that while the worker had been informed about her common law rights, she had not been adequately advised about the time limits associated with these rights.
The worker had engaged several law firms over the years to handle different aspects of her case. The Court considered whether the worker’s former solicitors might have been negligent in failing to provide comprehensive advice about her legal rights and associated time limits. While the judge found that there were “some prospects” of demonstrating negligence, this factor was given minimal weight in the overall decision to extend the time limit.
In weighing all the factors, the Court had to consider whether the employer could still obtain a fair trial despite the delay. The judge noted the existence of various documents, including the initial investigation report, HR notes, and medical records, which could assist in refreshing witnesses’ memories and supporting the employer’s defence. The judge also considered the worker’s actions once she became aware of the time limits for her claim.
The Court found that the worker acted promptly when she learned about the limitation period. Ultimately, the Court decided to grant the extension of time.
Former staff from hospitality group allege culture of exploiting women and drug use at work
One of Australia’s leading hospitality groups, Merivale, has been accused of fostering a culture that places women at risk, condones drug use by staff and patrons and fails to adequately address claims of sexual assault.
An ABC investigation into the hospitality industry contacted former staff who detailed a culture across Merivale venues that exploits female employees, including some who said they were not allowed to say no to customers. One former staff member alleges she was grabbed by two men while on shift, including one who placed an arm around her neck, but when she reported the assault to her manager, she was criticised.
The former staff member also said drug use was allowed and at times encouraged while working at the Hemmesphere bar in central Sydney. The ABC spoke with two female patrons who said they were put in a dangerous position when they were mistaken for sex workers at Ivy nightclub in Sydney’s CBD.
The hospitality group is one of the largest in the country, with thousands of staff working across more than 80 venues along the country’s east coast. The allegations have emerged as the culture of another major Sydney hospitality group, Swillhouse, has come under intense scrutiny with Nine Entertainment reporting allegations the group ousted female staff after they reported sexual assault, encouraged staff to have sex with customers and take drugs on shift and discriminated against women.
A former staff member from Merivale’s Coogee Pavilion alleges she was raped by a colleague at his home one night in 2018, and after reporting it to management, said she was rostered to continue working with him. While having a night out with friends, the former staff member, who asked not to be named for privacy reasons, alleges she was drugged and raped by her colleague.
A Merivale patron, Jess Helinski, told the ABC of an ordeal she endured during a visit to the Ivy nightclub earlier this year. She was asked if she was a sex worker by a male customer after being seated next to him by a Merivale staff member. Jess took to Instagram to ask her followers if they or anyone they know had “experienced sexual assault or harassment at Sydney’s famous Ivy precinct or any of the Merivale nightlight [sic] venues”. Within 24 hours, she received 48 responses from both patrons and staff, with allegations of sexual misconduct, harassment and drink spiking across multiple Merivale venues. A Merivale spokesperson said the company had “encouraged the patron to report the matter to police”. The spokesperson said the company had itself reported the matter to police and had “supported the police enquiries”. NSW Police is investigating the incident.
Queensland passes legislation to combat workplace harassment, discrimination
The Queensland government has passed landmark legislation aimed at strengthening protections for workers against discrimination, vilification, and sexual harassment.
The new laws are seen as a significant step in ensuring safer and more respectful workplaces across the state, with a focus on preventing sex-based harassment and improving responses to domestic and family violence. The legislation, which modernises Queensland’s Anti-Discrimination Act, includes several key reforms designed to address workplace misconduct. One of the most notable changes is the introduction of an aggravating sentencing factor for cases where an individual inflicts violence against a worker, including instances of sexual assault.
Premier Steven Miles emphasised the importance of these new protections for workers, particularly women who face higher levels of sexual harassment in the workplace. Minister for Health and Women, Shannon Fentiman, highlighted the gendered nature of workplace harassment and the need for a community-wide response.
The new laws are also designed to challenge societal attitudes that enable domestic and family violence, with an emphasis on fostering a culture of equality and respect. In addition to targeting sexual harassment, the legislation enhances protections against discrimination based on a range of attributes, including race, religion, gender, and sexual orientation. Attorney-General Yvette D’Ath underscored the government’s commitment to making workplaces safer for all Queenslanders.
The reforms expand the list of protected attributes to include sex, age, and impairment, further strengthening protections for Queenslanders from hate speech and vilification. The legislation also retains longstanding protections for expressions of faith and belief under the Anti-Discrimination Act, ensuring that religious freedoms remain intact while bolstering protections against discrimination. In addition, the new laws introduce an aggravating sentencing factor for cases where an individual uses violence against a worker in the course of their employment. This provision aims to hold offenders accountable and deter workplace violence.
NDAs can wreck survivors’ chances of recovery and leave employers worse off
Bullying and sexual harassment are a curse on corporate culture. But non-disclosure agreements (NDAs) drafted after the event can wreck a survivor’s chances of recovery – and leave an employer worse off, says employment lawyer Amanda Watt, partner at Minter Ellison in Melbourne. Rather than sexual harassment being prevented, the gagging effect of an NDA can see a perpetrator carry on their behaviour as though the rules don’t apply to them, said Watt. The secrecy around NDAs also works against organisations if only a very small group of people are aware of them. “How [NDAs] are used and managed can impact on whether unlawful behaviour continues or not in the workplace.”
The culture of bullying and sexism alleged to have prevailed at Network Seven, as investigated by the ABC in an episode of Four Corners in August, is a typical scenario of how NDAs can be used. According to Watt, NDAs traditionally involve an organisation paying off a complainant in an employment law dispute in exchange for their silence and a release of liability. The employee may be limited in talking about the episode to their lawyer or accountant, even to close colleagues, family and health practitioners.
Such constraints are a severe impediment to a person’s emotional recovery, and work by the Australian Human Rights Commission (AHRC) has shown NDAs can have a negative impact on wellbeing.
On the positive side, a NDA will mean the person can re-enter the job market without being connected with scandal. “Most people don’t want to become front-page news,” Watt said. “Many agreed to confidentiality to protect their privacy because they were worried about the impact on their career. Because they had made a complaint or raised concerns, they didn’t trust that their career wouldn’t suffer for that.”
The introduction of positive duty on employers to prevent workplace sexual harassment, part of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act passed in late 2022, has turned a searchlight on the dark corners of corporate Australia. In December 2022, the AHRC issued guidelines to organisations about how it believes NDAs and confidentiality clauses should be approached. Its recommendations included that an NDA should contain information on access to support and counselling.
The guidelines were a positive development, Watt said. “Just having a confidentiality agreement confined to a settlement sum is not driving these poor outcomes; it’s the inability of someone to be able to share their story if they want to and for the organisation to understand and share its learnings in a de-identified way.”
Organisations can use NDAs if they choose, but they should pay attention to the AHRC guidelines, Watt said.
SafeWork SA undertakes Parliament House audit
SafeWork SA inspectors recently conducted an audit at the South Australian Parliament House. It has issued six Work Health and Safety Improvement Notices under the Work Health Safety Act 2012:
- Failing to demonstrate that an adequate hazard identification and risk assessment targeting all psychosocial hazards had been undertaken at the workplace.
- Failing to demonstrate the provision of a system of work for managing and resolving grievances or complaints associated with third parties who enter the workplace to undertake work-related duties.
- The absence of an approved system of work for managing the hazards associated with alcohol and/or drugs in the workplace.
- Failing to demonstrate that workers who undertake or act in leadership roles had been provided with adequate information and training about their duties and responsibilities under work health and safety legislation.
- Failing to provide duty holders with information, instruction and training specifically relating to the duties prescribed by the Work Health and Safety Act 2012 (SA), Section 27 Duty of Officers.
- Failing to demonstrate that all persons who enter the workplace to undertake work-related duties are provided with adequate information, instruction and training in the work health and safety systems implemented to manage risks to physical and psychological health and safety.
Five of the six improvement notices have associated timeframes of 10 or 12 weeks. The other notice is scheduled for the first half of 2025. The Review of Harassment in the South Australian Parliament Workplace was requested by both Houses of the South Australian Parliament and was conducted by the Commissioner for Equal Opportunity, who made 16 recommendations.
Mike Sneesby resigns as Nine Chief Executive
After months of pressure, the CEO of Nine Entertainment Mike Sneesby announced he’s leaving the media giant. His departure comes after major cultural issues at Nine including allegations of sexual harassment by former staff and the controversial exit of Nine’s chairman, the former federal Treasurer Peter Costello.
Union pours fuel on sexism claims within fire service
A toxic “macho” culture and sexual harassment within the Queensland Fire and Emergency Service have been a problem for decades, a union says. The Rural Fire Brigade Association is concerned longstanding systemic issues cannot be fixed with an independent review.
The service faces allegations of racism and sexism, with one incident involving male firefighters ringing a bell at “attractive” female colleagues at the Whyte Island training facility in Brisbane. Queensland Rural Fire Brigade Association general manager Justin Choveaux said the allegations were referred to the government in January, but had been “swept under the rug”. He said firefighters in the early 1990s experienced the same toxic culture and nothing had changed since, despite a review in 2014. Fire and Disaster Recovery Minister Nikki Boyd called the allegations at Whyte Island “abhorrent” and said any victims should come forward.
Mr Choveaux said the response from the minister and department was not good enough. He said the first step should have been publicly reporting the systemic issues, followed by formal reprimands for perpetrators and an apology to victims.
Opposition Leader David Crisafulli similarly raised concerns about the government’s transparency. The Liberal National Party has reportedly referred the allegations to the state’s corruption watchdog, with Mr Crisafulli confirming “appropriate authorities” were investigating. He said all resources needed to be used, including a possible inquiry.
New race discrimination in the workplace guideline
The Allan Labor Government and the Victorian Equal Opportunity and Human Rights Commission recently launched the Race discrimination in the workplace guideline, to ensure Victoria remains an inclusive state where everyone can fully participate in all aspects of Victorian life.
Minister for Multicultural Affairs Ingrid Stitt launched the guideline this week, which will assist employers to build racial literacy and better understand their legal obligations to prevent and respond to race discrimination under the Equal Opportunity Act 2010. It will help identify and address racism in workplaces and support First Peoples and multicultural Victorians to fully participate in the workforce and to understand their rights.
Eliminating discrimination against women in Australia
Australia will deliver its ninth periodic report to the United Nations Committee on the Elimination of Discrimination Against Women in 2024.
As a party to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), Australia is required to periodically report to the Committee on the implementation of obligations under the Convention and progress toward eliminating discrimination against women in Australia.
The Committee has issued Australia with a list of 25 targeted questions that are specific to Australia and the challenges experienced by women and girls dealing with discrimination. Federal, state and territory governments have provided detailed responses to the questions in the draft of Australia´s ninth periodic CEDAW report.
The Office for Women is inviting feedback on Australia’s ninth periodic report draft from individuals, women’s rights organisations and other civil society organisations. A summary of feedback provided through public consultation will be de-identified and submitted to the Committee as an annexure to Australia’s final periodic report. Consultation is now open, closing 26 September 2024.
Westpac allegedly bullied ‘troublemaker’ staffer who raised fraud concerns
Westpac allegedly played down warnings of fraud and other crimes in mortgage broking subsidiary RAMS Home Loans for more than a year. The audit and risk executive raised concerns claiming she was bullied by other senior managers who labelled her a troublemaker. Samantha Aitken, the bank’s head of risk and treasury audit, is suing her employer in the Federal Court, alleging she was side lined and prevented from raising her concerns with regulators in 2022 and 2023.
Since last year, the Australian Securities and Investments Commission and the Australian Prudential Regulation Authority, have been investigating whether RAMS flouted credit rules, including those related to responsible lending guidelines, and provided misleading information since last year. Westpac said last month it would close the 33-year-old brand – once the largest non-bank originator, funder and service provider of home loans in Australia – to new business. It has also allegedly found evidence of illicit kickbacks and faked tax returns and company statements.
Ms Aitken claims that she initially raised concerns about a franchisee in Sydney’s west after discovering “suspected fraud and other criminal activities” in June 2022. She claims to have told then RAMS managing director Jake Bromwich, who is now the chief executive of mutual lender Beyond Bank, that the franchise should be ended, but he described her as “someone who was killing his business” and labelled her a “troublemaker”. While she escalated her complaints on several occasions, including to former Westpac consumer bank boss Chirs de Bruin, executives repeatedly sidelined her or directed her to remain quiet about the issue.
Westpac denies the allegations, and says it took “appropriate action” in 2022. It has yet to file a defence in the case.
Ms Aitken’s claim says Mr Bromwich then allegedly bullied her from August to December that year. He allegedly “regularly berated [Ms Aitken] for angering RAMS franchisees” and “accused [Ms Aitken] of not being helpful”. When she complained, Ms Aitken claims other executives “refused, failed or neglected to take any action to redress or remedy Mr Bromwich’s bullying”. Ms Aitken says she was continuously bullied by other staff throughout 2022 and 2023 as she continued to raise concerns about risks in RAMS’ business. “As this is a matter before the court between Westpac and its employee, there won’t be any comment,” a Beyond Bank spokeswoman said when approached for comment. Ms Aitken claims she was “directed that she has no more involvement with those elements of the prudential compliance audit that concerned RAMS” ahead of a meeting with the regulators in November.
The bank rejects the allegation it had breached workplace laws, and says it took “appropriate action” in response to Ms Aitken’s concerns including putting in place, “heightened monitoring of loan applications, investigations into franchisees and the self-reporting of issues to regulators”. “From November 2022 onwards, several franchise agreements were terminated, and RAMS has now been closed to new applications,” it said. Westpac faces a separate class action suit from former RAMS franchisees who claim their agreements with the bank were improperly terminated. In its defence, the bank has alleged that it found evidence of illicit kickbacks and faked tax returns and company statements.
Unfair dismissal and inherent requirements of the job
Robert Price was employed by the Victorian Police Department as a Police Custody Officer (PCO). After being absent from work for 22 months due to medical reasons (anxiety, depression) he was dismissed because it was argued he could not do the inherent requirements of the job.
The medical assessment was made by an independent medical psychiatrist who said that Mr Price was not able to fulfil the duties of a PCO as per the job description on the basis that his ability to assess persons in custody was impaired, his anxiety symptoms and prolonged avoidance of interpersonal situations and low self-esteem was not conducive to taking control of unpredictable situations.
The medical psychiatrist further gave evidence that when under stress Mr Price’s concentration and attention are impaired, but the main limiting factor to return to work is his relationship with colleagues and his psychological response to them. Mr Price argued that with mediation and psychological support, he would have been able to return to work.
Fair Work Commissioner Yilmaz found that, “on the evidence, it is reasonable to conclude that the respondent dismissed Mr Price due to his incapacity to return to work in the foreseeable future.” There were no other reasons that warranted a successful unfair dismissal claim and so Mr Price’s application was dismissed.