1 in 4 employers not tracking workplace sexual harassment

A new survey by the Workplace Gender Equality Agency (WGEA) has revealed that whilst nearly 99% of employers have a formal policy on work-related sexual harassment and discrimination, 28% of employers are not monitoring its prevalence.

This survey collected data from over 7,000 medium and large employers, covering over 5 million Australian employees.

Although the Positive Duty means taking effective action, there needs to be more measures in place than just a policy against sexual harassment. Employees and leaders must know the policy, understand what’s in it, and the part they play in implementing it.

The WGEA results also show:

• Only 55% of company boards are in involved in reviewing, signing off on, and communicating such policies.
• Just 68% of companies have anonymous disclosure processes for employees reporting sexual harassment. It’s important to protect a reporter’s identity as there is widespread underreporting of incidents, often due to fear of repercussions.
• Only 25% of CEOs communicated the organisation’s expectations surrounding sexual harassment and discrimination to new staff at induction; and just 9% ahead of big events, like Christmas parties.

WGEA CEO Mary Woolridge said that although there are positive results, CEOs and Boards can play more of a role in proactively enabling a safe and respectful culture by communicating the employer’s expectations more regularly to employees.

Caution to be exercised when dismissing during probationary period 

The recent interim decision of the Federal Court in Dabboussy v Australian Federation of Islamic Councils (AFIC) upholds the presumption that dismissals occurring close the end of the minimum employment period for the purposes of unfair dismissal were undertaken to prevent the employee from exercising a workplace right. If this is the case, the dismissal will contravene the general protections regime in the Fair Work Act 2009 (Cth).

Mr Daboussy was dismissed in September following allegations of sexual harassment by a female colleague. The allegations were denied, although he admitted to commenting on the complainant’s appearance. AFIC’s investigation into the matter, although not yet finalised, indicates that the allegations are substantiated on the balance of probabilities. However, the decision to dismiss was made a mere 7 hours prior to the date at which Mr Dabboussy would have completed 12 months of continuous service.

The court found a strong inference that the decision was made to dismiss Mr Daboussy before the day on which he would have been eligible to lodge an unfair dismissal claim. The judge granted interim relief reinstating him to his former position. His Honour recognised that the timing of AFIC’s decision deprived him of a future right to contend his unfair dismissal and defend the allegations of sexual assault.

As this is only an interim decision, AFIC will rely on the investigation’s finding of sexual harassment to contend that they led to the decision to dismiss, rather than preventing Mr Daboussy from lodging a claim.

The case is a reminder for employers that adverse action undertaken to prevent an employee from exercising a future workplace right is unlawful. The decision reminds employers to wait until misconduct investigations are complete, and allegations are substantiated, to dismiss an employee.

Grossly offensive words amount to sexual harassment 

A recent decision of the Fair Work Commission (FWC) held that employees may be validly dismissed for using offensive language if it constitutes sexual harassment.

In the case of Power v Lyndons Pty Ltd, Mr Power said to another employee, words to the effect of “suck my d…/I will f… you up the arse,” during a heated argument. The colleague subsequently gave evidence that Mr Power had regularly made inappropriate comments, filed a written complaint, and resigned. After investigating the complaint, the employer dismissed Mr Power for bullying and sexual harassment; he subsequently made an unfair dismissal claim.

The FWC was satisfied that the words said by Mr Power clearly fell within the definition of sexual harassment as defined in regulation 1.07(3)(a)(iv) of the Fair Work Regulations 2009 (Cth). The Commission dismissed the application because it was satisfied that Mr Power’s termination was valid and directly related to use of offensive words during the argument.

Although Mr Power argued that swearing was commonplace in the workplace, the FWC found that not only were the words used grossly offensive, but they amounted to a form of sexual harassment. Since employers have a duty to sanction misconduct, the dismissal was justified.

This case highlights the need for employers to:

• Understand what constitutes sexual harassment.
• Be aware that sexual harassment is serious misconduct as prescribed by the Fair Work regulations that gives rise to immediate termination.
• Investigate complaints when they are made.
• Take action if there are any findings of employee misconduct.

The distinction between this case and other cases where swearing has not constituted sexual harassment could be because this swearing was also referencing sexual acts in relation to the original complainant.

Collingwood settles lawsuit over alleged discrimination

Collingwood Football Club has settled legal proceedings with the former head of First Nations strategy at the club, who claimed he was humiliated by a chief executive.

Mark Cleaver accused Craig Kelly of using slurs and making jokes about Indigenous culture and a female elder, amounting to breaches of the discrimination acts around race, disability, and equal opportunity.

The lawsuit was first filed in July, with Mr Cleaver claiming he had suffered hurt, humiliation, distress, and economic loss after the club terminated his employment in May. The club maintains that no breach of workplace law had occurred, and Mr Cleaver’s termination was unrelated to his complaints. Despite this, a 2021 review found that the club was guilty of systemic racism, handing down 18 recommendations urging the club to do better.

Mr Cleaver’s lawyer has stated that questions need to be asked about how we can require important organisations like Collingwood to do better. This includes implementing serious consequences within the sport when such allegations are proven.

AI could lead to workplace burnout, surveillance and discrimination

Despite the potential of artificial intelligence (AI) to boost the global economy, it can enable workplace monitoring, increase burnout, and lead to discrimination in the recruitment process. For example, while AI may help reduce the significant administrative burden placed on healthcare professionals, there are concerns that this work would simply be replaced with additional patient contact hours. This may increase the risk of burnout by removing the time taken for reflection and clinical notes.

Joseph Mitchell, Assistant Secretary of the Australian Council of Trade Unions (ACTU), believes there’s a balance to be struck between productivity enhancing technology and the burnout and stress it may bring. He said that unions are worried that AI could lead to workplace surveillance by monitoring things like an employee’s location, how often they go to the toilet, what they’re doing with their hands at any given time, where they’re looking, and who they are talking to.

AI may be used for rostering decisions, where workers have no visibility of the characteristics used to determine whether people are rostered on. Ultimately employers must be transparent with how they’re using AI and what kind of problems they’re trying to solve with it, the key is to consult with workers before introducing AI into the workplace. The ACTU has called for a national AI authority to be introduced to regulate the adoption of technology in workplaces.

Concerns for gender inequity in Queensland Fire Department 

Staff at the Queensland Fire Department have raised concerns about a potential move to replace the organisation’s Gender Advisory Group amid allegations of sexism and discrimination.

It is understood that the Department may replace the group with a diversity, equity and inclusion group that will cover a broad range of groups, rather than just women. Women make up just 13% of total senior executive roles in the department, with just 4.7% of permanent paid firefighters identifying as female.

There are concerns that this move will distract from gender-related solutions and policy. It comes at a time during a renewed push for an independent inquiry into cultural issues within the department, with many female staff coming forward with stories of sexual harassment, bullying, and discrimination over the past several years.

1 in 2 migrant women experience workplace sexual harassment 

A report by Unions NSW has revealed that 51% of migrant women on temporary visas have experienced workplace sexual harassment. Polling more than 3,000 migrant women, the report examined the prevalence of sexual harassment of migrant women in different industries.

Despite this alarming prevalence, the report found that 75% of those who experienced sexual harassment did not report the incident, likely due to fear of job loss (cited as a reason by 51% of respondents). Most respondents had concerns relating to their visa status if they came forward with their experience (51-67% depending on the industry). The types of harassment experienced included:

• Sexually suggestive comments or jokes (52%).
• Intrusive questions about private life or physical appearance (42%).
• Repeated or inappropriate invitations to go on dates (28%).
• Inappropriate staring or leering (24%).
• Unwelcome touching, hugging, kissing or other forms of personal space invasion (23%).
• Inappropriate physical contact (20%).

Nearly 48% of respondents did not believe that their employer was doing enough for their safety and quit as a result. Unions NSW has called for reforms such as:

• Establishing migrant worker centres to support women legally and encourage them to report harassment.
• Providing education and training to address cultural misunderstandings and raise awareness of behaviours that constitute sexual harassment.
• Removing visa conditions that make workers vulnerable.
• Funding better employment pathways and training programs.

Culture of cover-up and cowardice in Queensland hospitals 

A new survey of 831 junior doctors by the Australian Medical Association Queensland (AMAQ) reveals increasingly negative trends across multiple metrics. 1 in 3 respondents said they sometimes felt unsafe at work, almost half reported being burnt out to the extent of making errors on the job, and more than 4 in 5 said they feared negative repercussions if they reported an incident.

Approximately a third reported bullying, discrimination, or harassment. AMAQ President Dr Yim accused hospital managers of trying to stop the survey, presumably because they feared what it would find. He said this points to a culture of cover-up and cowardice, which are the exact behaviours that need to be identified and fixed.

Dr Yim noted there are simple fixes for some concerns, such as junior doctors feeling unsafe walking from the hospital buildings to their cars. Other concerns may require increased resourcing and improved consultation with doctors to address challenges.

NT Police Force report finds no current racism  

The final report from a joint NT Independent Commissioner Against Corruption and NT Police Force investigation found evidence of historical racism in the police force. But it found no further evidence of racist behaviours beyond 2015, concluding that the matter be closed.

Law firm Levitt Robinson lodged a complaint with the Australian Human Rights Commission (AHRC) in September on behalf of three currently serving Aboriginal police officers within the NT police force, alleging racial vilification and unequal pay. Partner Dana Levitt says the report’s conclusion that there is no recent evidence of racism is ‘gobsmacking’ and that the investigation is ‘flawed’.

Among the allegations detailed in the AHRC complaint are instances of non-Indigenous colleagues suggesting Aboriginal officers are lazy and referring to them by derogatory names. Ms Levitt notes that her conversations with Aboriginal police officers reveal that racism is alive and well within the force. The NT Anti-discrimination Commissioner said that the report does not put an end to the matter, offering to conduct his own review of racism within the force. The AHRC matter is still in the mediation stage, failing of which the firm will lodge a case with the Federal Court.