Gendered violence widespread in the Australian healthcare system
According to new ANU research, gendered violence is widespread in the Australian healthcare system. The report summarises the available evidence on violence in the Victorian health and community care workforce.
The report shows this violence is gendered, with workplace sexual harassment commonplace. It also finds that there are, currently, no regulatory guidelines designed specifically to protect practitioners from patients. This has left one in four Victorian healthcare workers unprotected when they have experienced inappropriate physical contact at work. A review of the literature shows:
- 70% of surveyed Victorian health workers had experienced aggression, violence, or abuse at work. One in four experienced inappropriate physical contact.
- More than half of respondents reported hearing sexually suggestive comments or jokes.
- 26% of workers had experienced inappropriate physical contact including unwelcome touching, hugging, cornering, or kissing.
- Of those who experienced sexual harassment, half didn’t submit a complaint for fear of repercussions. They said that it ‘wouldn’t make a difference’, indicating a need to foster cultural change in the sector.
- No regulatory guidelines designed specifically to protect practitioners from patients. Policies designed to address work-related gendered violence should consider this gap.
Experts at ANU believe that attempts to address gendered violence in the health sector would work best via a whole-of-sector approach and specifically measures to protect practitioners from patients in the workplace. The most effective policies would be those directed at the structural drivers of gendered violence, such as poor working conditions, staffing levels, and prevailing workplace culture.
When a Whistleblower Policy is used incorrectly
The Fair Work Commission (FWC) recently dealt with a case involving a worker’s dismissal from a prominent consumer electronics company. The case centred on a product line manager who argued that his dismissal was unfair and retaliatory. He claimed that he had been subjected to bullying, isolation, and discrimination, which led him to report alleged misconduct by senior management. The worker maintained that his actions were protected under the company’s whistleblower policy and that he had acted in good faith to expose what he believed were serious issues within the organisation. He also contested the fairness of the disciplinary process that led to his dismissal, raising questions about procedural fairness and the handling of workplace grievances.
The worker started as a product line manager in July 2022. Tensions began to build when the worker’s 2023 performance rating was initially downgraded from ‘B’ to ‘C’. Although this was later reversed after an appeal, the worker felt this was evidence of unfair treatment. He was also excluded from the 2024 annual planning meeting, which he had attended the previous year. The company explained this was due to organisational restructuring, but the worker saw it as further evidence of discrimination.
The situation escalated when the worker sent an email to the finance manager on April 5, 2024, which the company deemed disrespectful. This led to a first and final warning being issued to the worker on April 8, 2024. The company then placed the worker on what it incorrectly termed “gardening leave” and restricted his access to company systems. Feeling aggrieved, on April 10, 2024, he sent emails and WeChat messages to hundreds of staff across the global organisation, alleging serious misconduct by senior managers. These allegations included market manipulation, bullying of Chinese staff, unlawful termination of pregnant employees, and misappropriation of funds.
The worker claimed his actions were protected under the company’s Whistleblower Policy. However, the FWC found that his method of distributing the allegations breached the policy’s confidentiality requirements and went beyond the scope of “reportable conduct.” It noted: “[The worker’s] broadcasting of such serious allegations via the 10 April 2024 emails and WeChat messages against two senior managers within the organisation was likely to harm their reputations, even if the allegations were ultimately found to lack substance.”
The FWC criticised aspects of the company’s approach, stating: “The fact that the investigative and disciplinary process was undertaken by [the operations director], who was one of the subjects of [the worker’s] allegations in his 10 April email and WeChat messages, calls into some question her objectivity in investigating and then determining the disciplinary outcome.”
Despite these procedural shortcomings, the Commission ultimately found that they were not sufficient to render the dismissal unfair, given the severity of the worker’s misconduct. The decision said: “I am satisfied that [the worker’s] conduct breached his obligations under the Whistleblower Policy. It was wilful, deliberate and reckless behaviour aimed at damaging the reputation of [the general manager] and [the operations director] across [the employer’s] global group.” Lastly, the FWC concluded: “Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that [the worker] was unfairly dismissed within the meaning of s.385 of the Act.”
Sexual harassment warranted dismissal by BHP
Mr Roy Smout filed an application with the FWC seeking a remedy for an alleged unfair dismissal. He was dismissed by BHP in relation to complaints of sexual harassment made by two female cleaners, who were employed by a contractor at the Blackwater. BHP engaged an investigator to investigate the complaints.
The Commission found that Mr Smout did say to one of the cleaners “Do you trust him” and “What happens in WA stays in WA”, implying her partner was or could be sexually unfaithful. The Commission also found that Mr Smout did say to both cleaners words to the effect of, that they should “show off their bodies” in an attempt to get a permanent job with BHP.
The Commissioner said, “The Applicant has clearly not adjusted to the modern workplace. Whilst these comments may have been seen as a joke a few decades ago, that is not the case now. The law has changed, the workplace has become more sophisticated and diverse. The notion of “the standards of men, and not those of angels” is no longer appropriate in a modern workplace, including a coal mine. Whilst I accept that the Applicant did not mean any malice from his comments, the complainants found them to be inappropriate and offensive. As a result, I am satisfied that the Applicant has breached the Respondent’s Code of Conduct, the FW Act and the Sex Discrimination Act by sexually harassing both women.”
However, the Commissioner found that the applicant was not given the ‘full opportunity’ to respond. “He wasn’t given the opportunity to ponder his response. Nor was he given the opportunity to seek legal advice or advice from his full-time union official. He wasn’t given the time to research the allegations or to ask his shift colleagues of their recollection of any of the events. This rushed process was all because of the pending ownership transfer of the mine and because no one from the Respondent’s HR team wanted to work over the Easter long weekend. Union Officials and HR employees are sometimes required to work outside of normal hours. That is just part of the job when members/employees work in industries that operate 24/7. For the Applicant’s termination to be rushed simply because of a public holiday is disappointing. As a result, I am satisfied that the Applicant has not received his “fair go”. Despite having a valid reason to terminate the Applicant, the lack of procedural fairness afforded to the Applicant renders his termination unfair.”
However, the Commissioner also stated that if BHP had followed the appropriate show cause process, then they still would have been entitled to dismiss the applicant. Given the applicant was entitled to 7 days for the show cause hearing, the Commissioner awarded him 1 week’s pay to reflect this extra week he would have been employed.
Worker says employer failed to intervene against bullies
The Fair Work Commission (FWC) recently dealt with a case involving allegations of workplace bullying and the determination of future risk in such situations. The worker claimed he faced bullying tactics that created a hostile working environment, forcing him to stay away from work. He argued that his employer failed to adequately address his concerns and even engaged in “retaliatory actions” when he tried to return to work.
The worker, employed at an IELTS facility, started working on 1 July 2023. On 18 March 2024, he filed an application with the FWC for an order to stop bullying, naming his employer and six co-workers as respondents. The application detailed incidents dating back to November 2023, which the worker said created a hostile working environment.
In his first report to the employer, the worker mentioned a “disturbing pattern of bullying tactics” and asked for a transfer to another location “to ensure a healthier work atmosphere.” The worker also asked to be given shifts on days when one of the named co-workers was not working. When the issues weren’t resolved, the worker went back to work on 17 December 2023 but said he faced “retaliatory actions.”
The worker criticised the employer’s attempts to resolve his concerns between mid-December 2023 and April 2024, calling them “toxic mobbing procedures. A key part of the case was about the worker’s ability to return to work. On 3 March 2024, the worker gave the employer a worker’s injury claim form and a certificate of capacity. On 15 March 2024, he provided an updated certificate that said the worker should “avoid direct contact” with his manager, “avoid interaction with administration staff,” and “avoid reception duties.”
The FWC had to decide if there was a risk that the worker would continue to be bullied at work, as required by section 789FF(1)(b)(ii) of the Fair Work Act 2009. It looked at several factors to make this decision and noted that the worker hadn’t worked a casual shift for the employer in over six months and was still unable to work.
The worker said he didn’t plan to get more medical help. Because of this, the FWC found there was no sign of when he might return to work at the centre. It also looked at what the employer planned to do if the worker came back to work. Two of the named persons promised not to communicate directly with the worker, and the employer said it would not offer him shifts with any of the named persons.
Ultimately the FWC decided there was no risk the worker would continue to be bullied at work by the named persons.
Nurse claims she suffered adverse action for filing bullying complaints
The nurse began full-time employment in September 2015 with her employer, a major healthcare provider. In November 2018, she submitted a workers’ compensation claim alleging workplace bullying and harassment by two nurses and inadequate management of their behaviour by the manager. The worker suffered a major depressive illness because of the bullying behaviours (which were substantiated in an investigation).
She ended work on 30 November 2018 and provided regular certificates of capacity until June 2021. The employer accepted the workers’ compensation claim in January 2019, and the worker received 130 weeks of payments until May 2021.
The worker alleged that her employer contravened the Fair Work Act 2009 by taking adverse action against her because she exercised workplace rights. She claimed she was dismissed because:
- She made a complaint about workplace bullying.
- She was entitled to the benefit of the Occupational Health and Safety Act 2004 (Vic).
Additionally, she alleged that the employer breached their enterprise agreement by failing to return her to the workplace following her absence due to injury. The employer argued that they had made efforts to accommodate the worker’s return to work but were constrained by medical advice and the specialised nature of her role. The return-to-work coordinator stated: “Because of the highly specialised nature of individual nurse practitioner roles, it was not possible to offer [the worker] another nurse practitioner role. These are very highly specialised roles and are not transferable between specialities. The information consistently provided by [the worker’s] treating doctor was that she was not able to return to her current role because of the breakdown in relationship between herself and the other nurses and should not return to work in any position other than a nurse practitioner role as this would cause an increase in anxiety due to the different skill set.”
The Court found that the employer failed to rebut the statutory presumption that the adverse action was taken for a prohibited reason. This was largely due to the absence of direct evidence from a key decision-maker in the termination process. This case highlights the significant responsibility on an employer in relation to producing evidence to rebut the presumption that adverse action was taken.
Worker refuses independent medical examinations amid long-term absence
The FWC recently dealt with a case involving an unfair dismissal claim by a legal secretary against a law firm. The dispute centred around the worker’s prolonged absence and her refusal to attend independent medical examinations (IMEs) requested by the employer.
The worker argued that she had been unfairly dismissed, claiming that the employer’s requests for medical examinations were unclear and difficult to understand. She said that she had provided ongoing medical certificates to justify her absence, and that the employer had not adequately considered her medical condition. The worker also asserted that she had not been given sufficient opportunity to respond to the employer’s concerns before the termination of her employment.
The worker had been employed as a legal secretary since 2006, initially with a law firm that later merged with the employer in April 2013. The worker’s last working day was on 9 June 2017, after which she continually provided medical certificates until her termination on 26 September 2018. During this period, the employer made several attempts to assess the worker’s condition and capacity to return to work. The employer’s Manager of People and Performance began following up on the worker’s condition in January 2018. Subsequent requests were made for details of the worker’s treating medical specialist and consent to speak with them about her injury.
The FWC considered several factors in determining whether the dismissal was harsh, unjust, or unreasonable, and found that there was a valid reason for the dismissal, stating: “The reason for [the worker’s] dismissal was the failure to attend multiple independent medical examinations which was a reasonable direction. This was a valid reason for dismissal given that [the employer] was enquiring about [the worker’s] capacity to work after being absent for over a year.”
Sri Lankan cricketer handed 20-year ban over misconduct in Australia
Former Sri Lankan cricketer Dulip Samaraweera has been handed a 20-year ban from holding any position within Australian cricket, following allegations of inappropriate behaviour towards a female player which was described as “utterly reprehensible”. The decision by Cricket Australia’s Conduct Commission comes after a swift investigation into the misconduct, which was deemed a serious breach of the organization’s code of conduct.
Samaraweera, 52, briefly served as the head coach of Victoria’s state women’s team before the accusations came to light. Nick Cummins, Chief of Cricket Victoria, praised the bravery of the player who reported the incident. “It’s important to recognize the courage it takes for individuals, particularly women, to come forward in such situations, given the power imbalances and potential backlash they may face,” Cummins remarked. Cummins further expressed strong support for the 20-year ban imposed by Cricket Australia’s Code of Conduct Commission, emphasizing that Samaraweera’s actions were completely “unacceptable” and violated the fundamental values of the organization.
Cummins reiterated that Cricket Victoria stands by the victim, offering continued support to ensure her well-being both on and off the field. He stressed that the safety and welfare of everyone involved in the sport are of utmost importance, and any form of misconduct will not be tolerated. Cricket Australia also released a statement reaffirming its commitment to maintaining a safe environment for all players and staff, vowing to prioritize the welfare of those affected by mistreatment. This incident follows another incident involving a Sri Lankan cricketer in Australia who was accused of rape. Sri Lankan cricketer Danushka Gunathilaka was arrested by Australian police on four counts of sexual assault following Sri Lanka’s final match at the T20 World Cup. Three of the four charges against Gunathilaka were eventually dropped, before a judge-only trial in September 2023 found him not guilty.
Complaint prompts investigation into former Federal Court judge
The top investigator who concluded that former High Court judge Dyson Heydon sexually harassed six female associates is examining a complaint against a former Federal Court judge. The Federal Court of Australia confirmed on Monday that the investigation by Dr Vivienne Thom, a former Inspector-General of Intelligence and Security, was underway, but said it did not involve allegations of sexual harassment.
In a statement on Monday, a court spokesperson said: “The Court confirms [Dr Thom] … has been engaged to investigate a complaint made by a former staff member against a former Judge. “The investigation will include a review of the relevant court policies and processes from both the period of the allegations as well as current day practices. “In the interest of fairness to all parties involved, the Court will not comment further, save to note, to avoid uninformed speculation, that the allegations do not involve any elements of sexual harassment.”
Dr Thom was appointed by the High Court in 2019 to lead an independent investigation into allegations of sexual harassment made against Heydon. “The investigation found that six former Court staff members who were Judges’ Associates were harassed by the former Justice [Heydon],” the then High Court Chief Justice Susan Kiefel said in a statement in 2020 at the end of the months-long investigation.
Heydon denied wrongdoing. “We have made a sincere apology to the six women whose complaints were borne out,” Kiefel said. “We know it would have been difficult to come forward. Their accounts of their experiences at the time have been believed.” Thom’s report found that the evidence “demonstrates a tendency by Mr Heydon to engage in a pattern of conduct of sexual harassment” which included unwelcome touching and attempting to kiss the women.
She also headed an inquiry into bullying and harassment allegations made by former federal Liberal staffer Rachelle Miller against former Human Services Minister Alan Tudge, for whom she had worked as a media adviser. The pair had had a consensual affair.
Former Launceston Mayor accused of unwanted sexual advances
A former Launceston mayor and influential theatre production manager has been accused of having a pattern of inappropriate conduct with young men in the theatre scene and making unwanted sexual advances. Multiple people have told the ABC that former mayor and current councillor Danny Gibson, 41, made unwanted advances to them, including through physical contact, phone calls and text messages.
Three people have agreed to share their stories while others were reluctant to go public, citing concerns over potential repercussions they believed they might face, such as missing out on theatre roles.
Mr Gibson, a former Tasmanian Young Australian of the Year, was elected to City of Launceston Council in 2011 and has for years taught drama to young people at the Stage Right Youth Theatre, alongside his local government work. He was also involved as a director, stage manager or actor in more than a dozen shows for local amateur dramatic company Encore Theatre, which has put on musical theatre productions with large local casts.
He was elected Launceston Mayor in 2022 before stepping down in May last year. At the time, he said he was stepping down due to the effect “vile attacks, stemming from media reports” were having on his mental health. Mr Gibson’s resignation came a week after the ABC put questions to the former mayor regarding some of the allegations included within this story.
Unfair Dismissal? Worker ‘instigated’ fights with supervisor
The Industrial Relations Commission of New South Wales recently dealt with a case involving a worker who was dismissed from his role as a team member in resource recovery at a local council. The worker had applied for unfair dismissal, challenging the grounds and process of his termination. He argued that he had acted in self-defence during one of the incidents leading to his dismissal, claimed that the employer had not adequately addressed his prior complaints about a colleague, and asserted that the investigation process was flawed. The worker also said that his dismissal was harsh due to his long service and the significant economic impact on his family.
The case centred around two incidents of alleged misconduct by the worker, involving aggressive behaviour and physical violence towards a colleague. The employer cited these incidents as the basis for dismissal, while the worker disputed the allegations and the fairness of the process.
The worker had been employed by the council since November 2014. His role involved collecting and emptying garbage bins. The incidents in question occurred on 24 July 2023 and 23 November 2023, both involving interactions with a colleague who sometimes acted in a supervisory role. In the July incident, the employer alleged that the worker yelled at the colleague in an aggressive and intimidating manner. The colleague was acting as a relief supervisor at the time and was in the area to deal with a complaint about bins not being put back correctly. The November incident was more serious, involving allegations of physical violence. The worker contested these allegations, claiming he felt bullied and harassed by the colleague. He also said that the employer had not adequately addressed his prior complaints about the colleague’s behaviour. The worker had made complaints about the colleague in July 2023, but these were investigated by the employer and found to be unsubstantiated.
The employer investigated both incidents. The investigation process included interviewing relevant witnesses, issuing a letter of allegations to the worker, providing the worker with CCTV footage of the November incident, and holding a meeting with the worker to hear his response. After concluding the investigation, the employer ended the worker’s employment on 1 December 2023, providing five weeks’ pay in lieu of notice.
After considering the evidence, including CCTV footage and witness testimonies, the Commission made several key findings. Regarding the July incident, the Commission accepted the employer’s version of events. The Commission found that on 24 July 2023, the worker had approached the colleague’s car and yelled at him. Violence in the workplace is a serious matter.” The Commission considered several factors in determining whether the dismissal was harsh, unreasonable, or unjust. It found no evidence to support the worker’s claims of bullying or provocation that would justify his actions.
The Commission deemed the employer’s investigation to be thorough and fair, noting that the employer had interviewed witnesses, provided the worker with a letter of allegations, and given him an opportunity to respond. While acknowledging the worker’s long service, the Commission noted that this also meant the worker should have been aware of workplace expectations. The Commission said: “[The worker’s] length of service does not lead me to conclude that the dismissal was disproportionate or harsh when considered in the context of the established misconduct.”
The Commission considered the significant financial consequences for the worker but determined that this alone was not sufficient to render the dismissal harsh. Consequently, the Commission dismissed the worker’s application, finding that the dismissal was not unfair.