FWC considers employment record in unfair dismissal ruling
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker employed as a security officer working primarily in a mental health ward. He was dismissed after an incident where it was alleged that he struck a patient who had become aggressive. The worker denied it, claiming that he had restrained the patient using proper techniques.
The employer viewed the worker’s actions as serious and wilful misconduct warranting immediate termination without notice. The worker was only given one day to respond to the show cause letter and the employer did not consider the worker’s request for a transfer to another site as an alternative to termination. The worker emphasised his long service, good conduct, experience working in the mental health ward, his ongoing studies in mental health. and the rapport he had built with staff and patients.
The FWC ultimately found in favour of the worker, noting several inconsistencies in the employer’s case including a lack of evidence to demonstrate the incident. The worker’s response to the situation was considered appropriate, reasonable, and proportionate. The dismissal was deemed to be unreasonable and harsh as there was no valid reason for dismissal and did not factor in the worker’s previously unblemished record over 8 years of employment.
This case underscores the fact that employers need to carefully consider whether disciplinary actions match the alleged conduct, especially for long standing employees with a good record.
Psychosocial hazards highlighted during Airport Safety Week
The Australian Airport Association ran an Airport Safety Week to mark the current National Safe Work Month. It emphasised the impact of psychosocial hazards on people working in high-stress environments.
Psychosocial hazards are categorised as anything that could cause psychological harm to an individual or group of people. Aviation is renowned for being a high stress environment, often involving physical exertion, deep focus and non-standard working hours. A 2023 study found that people occupying all safety critical roles in aviation reported similar problems, not just pilots. The main area of concern stemmed from the poor support and lack of leadership provided to employees. Factors such as inadequate rest breaks, specific job demands, pressure to perform at peak capacity and poor culture all contributed to the survey’s outcome. Employers were also reluctant to speak up about mental health issues for fear of retribution.
Research has shown that managers and leaders should identify psychosocial risks within the team before they happen. Management needs to identify issues that could lead to increased stress, fatigue and burnout and design roles in a way not to place undue pressure or burden on employees. Management style is important, with leaders optimally being supportive, open, honest and transparent to discuss these issues. Initiatives such as employee assistance programs lead to lower instances of psychosocial risk.
These tips are applicable to all working environments and are a reminder for employers to be aware of the psychosocial risk faced by employees.
Royal Commission finds sexual violence prevalent in Australian Defence Force
The final report published last month by the Royal Commission into Defence and Veteran Suicides revealed that sexual violence was a recurring theme in submissions from female service members and veterans. Data collected between January 2018 to October 2023 showed that over 80% of sexual assault victims in the military were female, and 90% of perpetrators were male.
The report included a recommendation for an external, independent, expert inquiry into sexual violence in the ADF to prevent sexual violence, improve workplace protections, provide support for victims, and ensure that perpetrators are held accountable.
A young woman who spoke about the issue is not confident that such changes will be implemented. She reported being raped by a male colleague in the Royal Australian Navy when she was just 19 years old. It wasn’t the first time she had been subjected to sexual violence while serving in the ADF; she reported other incidents of being stalked, bullied and sexually harassed. When reporting some of these incidents, she was allegedly bullied, branded a ‘troublemaker’ and passed over for promotion.
Consequently, she did not report the rape for fear of being dismissed or blamed. She also discussed her struggle to access professional support through the Department of Veteran Affairs (DVA) after being discharged, with her mental health deteriorating and ultimately resulting in diagnoses of Panic Disorder, Anxiety Disorder, and PTSD. Like many female veterans who shared their story with the Royal Commission, she hopes to see an end to the culture of silence around sexual misconduct in the ADF and supports their call for change.
Complaints referred to the NSW Bar increased by 43% in one year
According to the NSW Bar’s 2023-24 annual report, 19 people submitted reports with an online tool that allows confidential recording of incidents and anonymous reporting to the association’s sexual harassment officer.
Ruth Higgins SC, President of the NSW Bar, said the association had implemented a number of measures to reduce bullying at the Bar as part of its ongoing plan to reduce sexual harassment, discrimination and bullying across the legal profession. According to the report, complaints referred to the Bar increased by 43% between 2022-23 and 2023-24.
In the same period, several disciplinary matters concerning barristers were heard before the NSW Civil and Administrative Tribunal. One such matter involved Charles Waterstreet, a barrister who sexually harassed three women, including a law student who worked for him, a woman who interviewed for a job with him, and a legal assistant in an elevator. Although the conduct in this case amounted to professional misconduct, the tribunal declined to find that he was not a fit and proper person to engage in legal practice. Tribunal members Dixon and Bolt said that all workplaces, including chambers “should be safe spaces for all the people who work or visit them”.
Nine Entertainment culture of bullying and sexual harassment
A recent review of the culture at Australia’s biggest media company, Nine Entertainment, has revealed a systemic culture of abuse, bullying, discrimination, and sexual harassment. The review follows allegations about the inappropriate conduct of former Nine News director Darren Wick, who left the company in March after a staff complaint. Based on 122 interviews and 934 staff survey responses, the independent report found that the driving forces behind this culture is a lack of leadership accountability, power imbalance, gender inequality and lack of diversity.
It was found that the broadcast division had a high prevalence (62%) of abuse of power. 57% of employees in this division reported bullying, discrimination, or harassment, while 30% reported experiencing sexual harassment at work or work-related social events. A key finding was that HR staff would cover up incidents and simply told victims to avoid perpetrators when complaints were made.
The report made 22 recommendations, all of which the Board of Nine has committed to implementing. Nine Chair Catherine West also apologised to staff who experienced the inappropriate conduct detailed in the report.
Misogyny persists in AFL culture
Several players from AFL team Greater Western Sydney (GWS) have been sanctioned after disturbing details emerged from their end-of-year event. It was revealed that players engaged in sexist, racist and degrading acts during the event, including one player simulating inappropriate acts on a sex doll. Other players performed skits involving slavery, 9/11, and Sean ‘Diddy’ Combs – the American rapper currently jailed on sex trafficking charges.
There are many historic examples of AFL players acting violently and disrespectfully toward women, with some players continuing to play or retain their status as legendary players. Current player Jordan De Goey pleaded guilty to harassment in 2021, but Collingwood extended his contract for five years in 2022. The AFL and media often distinguish player’s violence against women from their achievements on the field, sending the message that misogyny is tolerated if the perpetrator is talented.
The willingness of the AFL to sanction GWS players in relation to breach of conduct is a step in the right direction and demonstrates the professional consequences of engaging in inappropriate conduct.
EEO Specialists is a leading provider of legally sound, engaging and effective workplace behaviour training. If you would like to have a confidential chat about workplace behaviour and compliance, please call Franca Sala Tenna on 0405 134 187 or email franca@equalopportunitytraining.com.au
