Sexual harassment during out of work hours valid reason for dismissal
An unfair dismissal claim was lodged by a female FIFO worker who worked for a labour hire provider for BHP and was fired for sexually harassing two male colleagues.
The incidents took place at Brisbane Airport and on a subsequent flight when the worker was ‘very intoxicated’. The behaviour, including rubbing her body against one employee and attempting to hold another’s hand, was found to constitute sexual harassment.
The Fair Work Commission (FWC) found that the worker’s dismissal was justified due to serious misconduct that violated company policy, despite the behaviour occurring outside of work hours. The decision upheld the principle that out of hours conduct can be a valid reason for dismissal if it is sufficiently in connection with employment.
This case is an important reminder that sexual harassment is gender-less, and that it is important to hold people to account regardless of the gender of the person doing the behaviour and the gender of the person who experienced the behaviour.
Insufficient evidence in unfair dismissal over bullying allegations
A team leader claimed that she was unfairly dismissed based on unsubstantiated allegations of bullying and discrimination. The allegations included reducing work hours of certain employees and favouring workers of a particular ethnic background.
After receiving complaints, the employer investigated by speaking with various employees and conducting an anonymous survey. The worker was then given an opportunity to respond to eight specific allegations in writing, which were all denied.
The employer presented evidence from several sources, including a manager, current employees and a representative from a work placement company. It included claims that the worker tried to ‘frustrate and place mental pressure’ on another employee and asked members of a particular religious group to do jobs they were averse to because of their beliefs, and alleged complaints from 26 workers of ‘sub-human treatment’ including yelling, racism and exclusion.
Despite this, the FWC found that the evidence was insufficient and that none of the allegations had been substantiated. It emphasised the importance of thoroughly investigating discrimination claims rather than presuming their validity. The appropriate response to such allegations is to investigate the matter and reach a reasoned conclusion, rather than unreasonably and unfairly presuming it is true. As no valid reason for dismissal was found, it was deemed unjust and unreasonable.
Ultimately, employers must ensure they have substantiated evidence before taking serious disciplinary actions against employees.
Deputy PM’s Chief of Staff ‘bullied out of her job’
Jo Tarnawasky, Chief of Staff to Deputy Prime Minister Richard Marles, alleges that she was forced out of her position after raising concerns about bullying by colleagues in her office. The behaviours reported included “derogatory conversations,” exclusion from staff activities, and a pattern of withholding information, undermining, and disrespecting her.
Ms. Tarnawasky raised her concerns with Mr. Marles in April, but shortly thereafter, she alleges he advised her to “look for alternative employment” and directed her to take extended leave. When she attempted to return to work in June, she was reportedly informed that she could not resume her role. Mr. Marles allegedly cited “ongoing issues” for over a year, but Ms. Tarnawasky claims that these issues were not previously raised with her.
Though she remains officially employed under Mr. Marles, Ms. Tarnawasky claims she has been unable to enter the office for months and is no longer able to perform her duties. She reports that no formal processes have been followed to investigate the bullying allegations.
The allegations mark the first major test for Labor’s promise to improve workplace culture in Parliament, following scandals under the Coalition. Ms. Tarnawasky contends that despite the introduction of reforms like the Parliamentary Workplace Support Service, issues – particularly affecting female staff – persist within Parliament. The ministerial code of conduct mandates that ministers maintain a safe and respectful workplace for staff in Parliament. If Mr. Marles is found to have violated this code, there could be serious repercussions, with some urging him to resign.
Domestic violence recovery centre exposed staff to psychological injury
SafeWork NSW has found that the Illawarra’s new $25 million Women’s Trauma Recovery Centre (WTRC) ignored employees when they raised psychological and physical safety risks with management.
This is ironic because the WTRC was designed to be a blueprint for trauma-informed healing that could be replicated across the country, supporting women in their journey to escape family, domestic and sexual violence.
SafeWork NSW has issued three damning improvement notices, finding the centre has breached workplace safety rules by exposing staff to psychosocial hazards. It found management failed to provide adequate training on “the risks of vicarious trauma” and put “excessive workloads” on staff.
New obligations on Queensland employers to manage sexual harassment
The Queensland Government has passed the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024. It introduces two key changes to the WHS Regulation involving control measures and prevention plans to manage the risk of sexual harassment in workplaces.
When determining what control measures to implement, employers must now have regard to all relevant matters, including:
- Characteristics of workers, such as their age, gender, sex, sexual orientation or disability.
- Characteristics of a workplace or work environment such as workplace culture, systems of work, lack of diversity, or other matters that may affect a person’s behaviour in relation to a worker.
Employers must review and revise control measures if a person reports sexual harassment, requiring employers to have appropriate reporting processes. Prevention plans must:
- Be in writing and state each identified risk.
- Identify the control measures to be implemented, to manage each risk.
- Identify the matters considered in determining the control measures.
- Describe the consultation undertaken with workers.
- Set out the procedure for dealing with reports of harassment at work.
- Be expressed in a way that is readily accessible and understandable.
- Be reviewed every three years or sooner if a report of sexual harassment is made.
Starting March 2025, employers will be exposed to civil penalties for failure to implement a prevention plan. Employers should start consultation and preparation for a prevention plan before this deadline. It is reported that similar obligations will be introduced in other states in coming months.
Can stress and anxiety extend a late unfair dismissal application?
The FWC recently dealt with a case involving a worker who filed an unfair dismissal claim one day late and sought an extension of time. The worker argued that his late filing was due to ongoing mental health issues, including anxiety and depression.
The FWC may grant extensions in ‘exceptional circumstances’, defined as situations that are out of the ordinary, unusual, special or uncommon. When determining whether such circumstances exist, it must consider factors including the reason for delay, whether the person knew about the dismissal after it happened, any actions taken to dispute the dismissal, potential harm to the employer, the strength of the application and fairness compared to others in similar situations.
The worker provided evidence in support of the application including a referral from his doctor in May for psychological counselling and an email that mentioned workplace bullying and harassment.
The FWC ultimately found that the worker had not given enough evidence to show that his mental health caused the delay in filing. The worker knew about the dismissal on the day it occurred and did not try to dispute it before filing. It stressed the importance of providing proper evidence when claiming mental health issues as a reason for delay, such as specific medical evidence. Ultimately, the extension was not granted, highlighting the strict timelines imposed for unfair dismissal claims.
Sexism faced by women in elite sport and exercise medicine
A new Australian report published in the British Journal of Sports Medicine found that women working in elite sport and exercise medicine (SEM) experience significantly more gender harassment, infantilisation and questions about family and gender when compared to their male counterparts.
The report surveyed 223 participants who have worked in elite sport, with an approximately equally number of men and women. Study Lead Sallie Cowan found that women in SEM perceive more disrespectful attitudes, have their judgement questioned and are sexually harassed at higher rates than men.
The report indicated that only 20% of women in SEM feel supported to speak up when experiencing sexual harassment, compared to 70% of men. Some responses from the survey included women in the industry feeling as though they couldn’t have a family whilst retaining their position and that they had to work ‘twice as hard’ as men to show their competency.
The report makes several recommendations to improve gender inequity in SEM including setting targets for gender equality and establishing formal and transparent recruitment processes. The report highlights the need for workplaces in male dominated industries to continue working toward gender equity and take affirmative action to eliminate discrimination.
FWC publishes new benchbook on sexual harassment
Earlier this month, the FWC published its new benchbook on sexual harassment, highlighting the need to comply with the positive duty guidance from the Australian Human Rights Commission.
The guidance covers compliance with the positive duty introduced in December 2022, following changes to the Sex Discrimination Act 1984 (Cth). The benchbook is important as it highlights that guidance relevant in the anti-discrimination space will also be relevant in the Fair Work jurisdiction when considering whether an employer can rely on the defence of ‘reasonable steps’.
To minimise chances of an adverse finding, employers must take all, not just some, reasonable steps to prevent harassment in the workplace. The onus lies on employers to prove that they took all reasonable steps. To comply with this positive duty, employers must ask themselves the following questions:
- Are they embedding a safe and respectful culture in the workplace?
- Are leaders setting the tone from the top?
- What risk management frameworks are in place?
- What education programs are being run?
- Is there a sexual harassment response and prevention plan?
Restaurant owner jailed for sexually assaulting foreign female employees
Maurizio Di Ciano, a prominent chef in Perth, was sentenced to seven and a half years in prison for sexually assaulting three female employees at his Italian restaurant. He was also ordered to pay an $8,000 fine.
He was convicted of three counts of sexual penetration without consent against one woman during a trial earlier this year and pleaded guilty to two indecent assault charges against two other women. The sexual penetration charges relate to an incident where Di Ciano raped a female employee in the restaurant’s storeroom whilst she worked her second shift in late 2020.
The prosecutor noted the power imbalance between Di Ciano and his victims, since they were all significantly younger than him, under his employment and all foreign nationals. The restaurant has now been permanently closed.