FWC finds employer’s approach to policy rollout and training inadequate in unfair dismissal case

The Fair Work Commission (FWC) has found that a worker who made repeated inappropriate comments to a co-worker about performing oral sex on their boss was unfairly dismissed. The employer terminated the worker’s employment, saying that he had breached company policy and created a hostile work environment, constituting harassment that warranted immediate dismissal.

A key aspect of the case was the implementation and communication of company policies. The FWC found that the employer’s approach to policy rollout and training was inadequate. It stressed the importance of ensuring all employees, particularly those in remote locations, receive proper training on workplace behaviour standards and policies. The Commission also gave weight to the worker’s long service record and the unique employment situation on Christmas Island.

Ultimately, although there was a valid reason for termination, the FWC found the dismissal to be harsh and unjust. The worker’s lack of exposure to and understanding of the relevant policies may have contributed to his behaviour, and the commission was satisfied that if he had been aware of the policy, he likely would not have engaged in the relevant behaviour.

This case serves as a reminder for employers to ensure they implement policies comprehensively, particularly in remote workplaces.

Former Maurice Blackburn lawyer sues over bullying and trauma

A former lawyer at Maurice Blackburn is suing the company over allegations that she was bullied and belittled by her boss, leaving her traumatised and unable to continue working. The case has been filed in the Victorian Supreme Court.

The former employee claims that she made repeated complaints to human resources over incidents of exclusion and micromanaging by a senior lawyer at the firm, which were not adequately or independently investigated. She alleges that her boss often provided unclear, incomplete instructions and required her to perform frivolous tasks which were used to unfairly criticise her performance.

It is alleged that the senior lawyer continued to withhold information critical to the employee’s work, including training sessions, critical client information and excluded her from solicitor’s meetings. It is reported that the employee’s boss breached the company’s bullying and harassment policies by filing a performance management document on a client file, which was accessible to other staff at the firm. Upon learning of this, the lawyer left the company feeling ‘depressed, anxious and traumatised’. The former employee alleges that her time at the firm has left her ‘totally incapacitated’ and unable to get another job.

What every employer should know: Complying with the Positive Duty

Employers now have a legal duty under the Respect@Work amendments to the Sex Discrimination Act 1984 (Cth) (SDA) to prevent sex discrimination and harassment. In order for employers to meet their new responsibilities under the SDA, they must consider implementing control measures and taking a proactive, consultative approach.

The positive duty means eliminating sexual harassment and discrimination to an extent that is ‘reasonable and proportionate’. The steps that will satisfy this test depend on several factors, including:

• The size, nature and circumstances of the business or organisation.
• Business’ resources (financial or otherwise).
• Practicability and cost of steps to eliminate such conduct.

Employers are urged to review the ‘Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)’ released by the Australian Human Rights Commission (AHRC) in 2023. These guidelines identify seven standards which must be considered by employers and PCBUs when implementing control measures:

1. Leadership
2. Culture
3. Knowledge
4. Risk Management
5. Support
6. Reporting and Response
7. Monitoring, Evaluation and Transparency

Some examples of reasonable and proportionate measures may include:

• Organising training for senior leaders to ensure they model appropriate behaviours.
• Proactively addressing cultural issues and encouraging diversity and equal opportunity.
• Implementing policies and procedures that address acceptable and unacceptable behaviour.
• Ensuring that consequences exist for perpetrators of sex discrimination.

Employers are also advised that the AHRC has new regulatory powers to investigate and enforce compliance with the positive duty, including making recommendations, issuing compliance notices, entering into enforceable undertakings with business and referring matters to the Federal Courts for direct compliance.

EEO Specialists has developed a handy summary of the positive duty guidelines.

Women in tech harassed out of the industry 

A new report published by Grapevine, a women led collective established last year to address inequality in the tech sector, reveals that sexual harassment and discrimination remain rife in the industry:

• 72% of victims of harassment, bullying or discrimination quit their jobs as a result.
• Only 23% of incidents were escalated through official channels due to fear of repercussions.
• 96% of those who reported harassment or bullying had negative experiences dealing with senior leaders or HR.

The report comes amid allegations of misconduct by Australian tech executive Richard White, the CEO of Australia’s largest software firm WiseTech Global. He stepped down from his role at the company on Thursday, after allegations of bribing women with properties and investments in exchange for sex came to light.

One co-founder of Grapevine reported that tech start-ups often don’t have HR departments and their founders may not have the emotional intelligence to talk to staff about such issues. Another co-founder discussed that the industry is a small and tight-knit community, making it harder for women to report sexual harassment.

Tech is a high-risk industry for sexual discrimination since companies are often male-dominated and do not prioritise the implementation of structures to prevent harmful workplace behaviours. Prabha Nandagopal, former advisor on the AHRC Respect@Work report, stated that leaders in the tech industry have a real chance to reshape the culture and build a respectful and inclusive environment. She has since founded Australia’s first independent trauma-informed platform SafeSpace@elevate to report workplace misconduct and address the issue of underreporting harmful behaviour at work.

Microaggressions building a barrier against women in construction 

A new report by the National Association of Women in Construction (NAWIC) has revealed that 88% of women in the industry have experienced microaggressions. A microaggression refers to a commonplace verbal, behavioural or emotional slight that communicates hostile, derogatory or negative attitudes toward, in this case, women.

8% of women who reported experiencing this have already left the industry, citing microaggressions, a lack of opportunities and toxic workplace as the main factor. A key issue in the report was the lack of accountability faced by perpetrators for engaging in discriminatory behaviour. 41% of incidents were committed by those in managerial positions, contributing to the lack of accountability. Of the women who complained or reported such an incident, 63% said their complaints led to no change, fostering a culture of silence.

NAWIC is calling for changes across the sector, issuing the following recommendations:

• Mandatory manager training on recognising and addressing microaggressions.
• Anonymous reporting mechanisms.
• Increased representation of women in leadership roles.
• Peer support networks to provide women with a platform to share experiences, offer mutual support, and validate each other’s concerns.

Former NSW police sergeant alleges homophobia

A former NSW police sergeant has added his voice to several other current and former officers who have recently alleged bullying, discrimination, nepotism and lack of mental health support in the force.

The sergeant recounts experiences of being spat at, his name crossed off the roster, his locker padlocked and being outright told that people did not want to work with him because of his sexuality. Officers would allegedly use openly hateful and derogatory language to describe the LGBTQ+ community, including during a Pride event in Sydney last year.

A common theme in his story and that of others in the force is the lack of formal complaints made due to a belief that it would worsen things. Police commissioner Webb announced a formal review of the force’s culture in early October.

Senior male staff member at Nine alleged to be subject of a sexual assault claim

Following the release of an independent report on the culture at Nine Entertainment last week, revealing evidence of systemic abuse, bullying and sexual harassment, it is now alleged that a senior male staff member at Nine is the subject of a sexual assault claim and ongoing investigation.

Matt Stanton, Nine’s acting CEO, has revealed that it is actively investigating a number of individuals and has engaged an external partner to look into complaints. He revealed that Nine would consider a range of consequences if complaints are upheld, such as counselling, formal disciplinary action, and termination of employment.

Leading employment lawyer Josh Bornstein has warned that Nine could face a class action lawsuit over the allegations of bullying, sexual harassment and inappropriate conduct. The Sex Discrimination Act 1984 (Cth) contains a recently added provision making it a breach of the Act for an employer to maintain a workplace that is hostile for women. Since the report indicates widespread sexism, sexual harassment and favouritism of male staff, Bornstein considers there may be a basis on which a class action could be brought. However, there are concerns that many affected women at Nine were required to sign NDAs (non-disclosure agreements), which could hinder such an action.