An alarming 97.3% rise in mental health claims over the past decade
According to Safe Work Australia’s latest report, mental health conditions accounted for 10.5% of serious claims in the 2022-23 period. The total number of claims was 14,600 – a 19.2% increase from the previous year and a staggering 97.3% rise over the past decade.
The ‘Key Work Health and Safety Statistics Australia’ report reveals that mental health claims represent one in ten serious workers’ compensation claims, highlighting the prevalence of psychological harm. The median time lost due to mental health condition claims was 37 weeks, more than five times the median time lost across all serious claims (7.2 weeks).
As organisations work towards safer environments, addressing these psychological risks is essential for promoting a healthy workplace culture and safeguarding employee wellbeing.
Parliament passes bill to help sexual harassment victims seek justice
The Australian Parliament recently passed the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, aimed at supporting workplace sexual harassment victims in legal actions.
The bill ensures that applicants in discrimination cases, including sexual harassment, cannot be ordered to pay the respondent’s legal costs, even if they lose. This removes a major financial barrier that previously discouraged many victims from pursuing legal action. The Australian Council of Trade Union’s research revealed that just 1 out of 230,000 victims of workplace sexual harassment bring the matter to court in Australia, deterred by high legal costs.
The bill implements a key recommendation from the 2020 Respect@Work report, which called for cost protections to improve access to justice for victims. The new costs model applies to all Commonwealth sexual harassment and anti-discrimination laws, offering broad protection across different legal contexts.
Dyslexic employee claims bullying and forced resignation over performance plan
A dyslexic worker alleged that her employer forced her resignation by implementing an unfair performance plan and failing to accommodate her disability. She claimed workplace bullying and intimidation compounded the issue, with her dyslexia not being handled appropriately.
Despite this, the Fair Work Commission (FWC) ruled that her resignation wasn’t “forced”, as her employer had offered reasonable accommodations and options, including a performance improvement plan, which the employee did not fully pursue.
After sending the employee a letter addressing the allegations against her performance, the employer required her response within 24 hours. The employer then accommodated the employee’s request for an extension of time due to a recent death in her family.
After being directed of the performance improvement plan, the employee was informed that she was welcome to bring a support person to the meeting and prepare any ideas to discuss her return to work. She had capacity to negotiate the terms of the performance improvement plan. In the same correspondence, details of an employee assistance program were attached.
FWC Commissioner Wilson found that such steps, along with an invitation for the employee to reconsider her resignation were inconsistent with a forced resignation.
Reasonable management action or bullying?
The Queensland Industrial Relations Commission (QIRC) recently had to decide if certain actions by management constituted workplace bullying or “reasonable management action”. It found that the employer’s actions – issuing warning letters and addressing employee misconduct – were reasonable, and the bullying claims were dismissed. The ruling emphasised that while management actions don’t need to be perfect, they must be justifiable and follow proper procedure.
The actions alleged to be bullying were two letters sent to the applicant, firstly warning him of unauthorised access of electronic patient records and secondly, giving him an opportunity to respond to allegations of inappropriate conduct by a fellow staff member.
In relation to the first letter, the commission emphasised the obligation of the employer to protect confidential medical records and the fact that the employee had no valid basis for accessing such records. In relation to the second letter, the employee was provided with witness statements and CCTV footage to support the allegations.
Vice President O’Connor of the Commission remarked that the process followed by the respondent was unremarkable and constituted reasonable management action taken in a reasonable way. For a finding of bullying to be made, there must be repeated, unreasonable behaviour that poses a risk to the health and safety of the employee. It was found that no such risk was present, nor was there any risk of continued bullying in the workplace.
The Commission outlined the following principles regarding what constitutes “reasonable management actions”:
- Management actions do not need to be perfect or ideal to be considered reasonable
- A course of action may still be ‘reasonable action’ even if particular steps are not
- To be considered reasonable, the action must be lawful and not ‘irrational, absurd or ridiculous’
- Any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it
- Consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances
Indigenous NT officers file racial discrimination complaint against police and government
Three Indigenous police officers in the Northern Territory have lodged a human rights complaint against the NT Police Commissioner and government, alleging systemic racial discrimination spanning over two decades.
The officers claim they received unequal pay compared to non-Indigenous colleagues and were subjected to derogatory treatment and systemic racism. They highlight the lack of career progression and support for Aboriginal community officers. If not resolved, the officers seek compensation, marking a critical case that could expose broader issues of racial inequity within the NT police force.
The complaint was lodged with the Australian Human Rights Commission. The police officers’ lawyer stated that his firm would be taking the complaint to the Federal Court if the matter is not successfully conciliated.
Tribunal dismisses discrimination claim, citing code of conduct breach
The WA Work Health and Safety Tribunal dismissed an application by a former Safety Operations Business Partner, who claimed discriminatory conduct after raising a safety issue.
The applicant argued that his dismissal and placement on a performance plan were retaliatory. However, the performance plan was deemed a supportive measure rather than discriminatory and the case was dismissed. All dismissals are classed as discriminatory conduct under the Work Health and Safety Act 2020 (WA).
However, to bring a claim for it at the tribunal, the discriminatory conduct must occur for a ‘prohibited reason’ pursuant to s 112. Among these reasons are raising a work health and safety issue. It held that the respondent dismissed the employee because the applicant breached the company Code of Conduct by engaging in misconduct such as sharing confidential information. Thus, the dismissal occurred for a reason other than a prohibited reason.
In relation to the performance plan, the Tribunal determined that the plan did not alter the applicant’s employment position to his detriment, rather, it sought to support and guide his performance.
Probationary dismissal of government officer deemed fair by appeal board
A government officer dismissed during probation for inappropriate behaviour toward female staff contested the decision, claiming unfair dismissal.
The Public Service Appeal Board reviewed the case and determined the dismissal was fair, citing the principles of probationary employment which allowed the employer to terminate the employment during the probationary period if the employee was not meeting the required standards.
The Appeal Board concluded that the decision to terminate the appellant’s probationary employment was consistent with the purpose and principles of probationary employment because:
- The concerns raised against the employee were genuinely held
- The employer’s right to terminate the employee’s employment during the probationary period was not misused or abused
- The employee was adequately informed he was not meeting the required standards, including the consequences of a failure to improve
- The employee received adequate support and training to enable him to perform satisfactorily – including training prior to commencing employment and on-ground training during employment
Man avoids jail after repeatedly sexually touching 16-year-old girl in workplace
Former shop assistant Damien Gardiner, 50, has avoided jail for repeatedly sexually touching a co-worker over a two-year period, beginning when she was 16. He has pled guilty to one charge of ‘sexually touching another person without consent’ pursuant to s 61HB of the Crimes Act 1900 (NSW).
The Queanbeyan Local Court heard Gardiner would slap the girl’s bottom if he saw her working in the shop, stacking shelves or checking inventory. The victim was hesitant to report the behaviour due to his position of authority over her. Gardiner was placed on an 18-month community corrections order to be served in the community, will have to perform 100 hours of community service, and has been ordered not to approach the victim or anyone connected with her. He was also fired from the store after the incidents were reported.