Avoiding incidents during the workplace Christmas season

Employers must remember that office Christmas parties are an extension of the workplace and must carefully balance facilitating a fun event with maintaining safe, respectful environments for employees.

Several recent Fair Work Commission (FWC) decisions have reinforced the rule that misconduct occurring outside of work hours can still be grounds for disciplinary action if the circumstances arise sufficiently in connection with employment.

Michael Byrnes – Partner at Swaab – suggests some sensible steps that employers can take to manage the risk of unpleasant events during this time:

• Choose the right venue: Avoid places that are inaccessible, isolated, or potentially dangerous. Consider how employees will get home after the event.
• Ensure any theme is not likely to cause offence, exclude people, or unwittingly lead to inappropriate or discriminatory costumes.
• Clearly establish start and finish times.
• Email employees prior to the event reminding them of the need to engage in appropriate behaviour and comply with workplace policies.
• Chose a ‘responsible manager’ to identify, monitor and address any issues during the event.
• Ensure responsible service of alcohol principles are observed and implemented during the event.
• Deal with any complaints or conduct issues raised by employees relating to the event in accordance with the applicable policy.

Reasonable management action or bullying? 

The FWC recently dealt with a stop bullying application where a worker claimed that her manager’s responses to her workplace concerns were inappropriate and humiliating. The workplace interactions included verbal exchanges about staffing, written communications about workload and the worker’s suspension during an investigation.

To issue stop bullying orders, the FWC needs to be satisfied that the worker has been bullied at work and that they face an ongoing risk. Workplace bullying involves repeated unreasonable behaviour creating a risk to health and safety. The Commission noted that management actions do not need to be perfect or ideal to be considered reasonable.

While acknowledging room for improvement in the employer’s communication methods, the FWC ultimately found that the employer’s conduct did not meet the definition of workplace bullying. After the initial conflicts, the worker escalated her concerns to senior management, where the general manager apologised for any distress caused at a meeting. The FWC noted that this showed the organisation’s willingness to address the workplace issues.

The decision emphasised the importance of proper investigation procedures, saying that a company must show a transparent and fair approach to those involved in the investigation.

Rio Tinto progress review reveals room for improvement 

Rio Tinto has released the findings of their progress review two years on from the Everyday Respect Report (2022), which found that bullying, sexual harassment and racism were systemic issues in the company.

The progress review found that the 26 recommendations outlined in the 2022 report have been largely implemented, with around half of survey respondents reporting a perceived improvement in relation to bullying, sexual harassment and racism. However, there were some concerning findings, including:

• 8 people reported experiencing actual or attempted sexual assault or rape, compared to 5 in 2021. 32 people reported experiencing pressure or requests for sex or sexual acts, compared to 37 in 2021. In both cases, most were women.
• 7% of respondents reported experiencing sexual harassment (same as in 2021).
• 39% of respondents reported experiencing bullying (compared to 31% in 2021)
• 50% of female respondents reported experiencing bullying (compared to 36% in 2021)
• 7% of respondents reported experiencing racism (same as in 2021)

The increase in sexual violence and bullying of women in the workplace is particularly concerning. The report identified backlash to Rio Tinto’s internal diversity and inclusion measures as a contributing factor to increased levels of bullying of female staff:

• Some women reported feeling like ‘diversity-hires’, which put a target on their back.
• Another said that the mining giant is ‘trying with diversity, but not inclusion’.
• Female staff reported being left out of social events, group chats and even receiving nude images from male staff.
• One respondent also outlined the lack of Indigenous leaders and mentors in the company.

Rio Tinto has said that they will focus on improving the training given to managerial staff and dealing with the micro-aggressions and ‘low-level racism’ that is part of the culture.

Study reveals systemic discrimination against female school leaders 

An analysis of 55 international peer reviewed studies has revealed the factors that contribute to the significant underrepresentation of female leaders in Australian schools and globally.

The report noted that women are often perceived as less competent than their male counterparts, with perceptions of being emotional, unpredictable, weak, and difficult to work with. It found that such scepticism often came from male school leaders and that doubt from parents and colleagues discouraged women from pursuing leadership positions.

The study’s chief investigator noted that men in Australian schools were more likely to be in leadership positions relative to holding roles in the classroom, whilst the opposite was true for female educators:

• In 2021, men accounted for 31% of leadership positions in schools, despite filling only 21% of teaching roles.
• In contrast, women make up nearly 80% of classroom teachers but account for only 69% of leadership positions.
• The report found that women take 1.5-2.7 years longer than men to attain leadership positions, despite having similar experience levels.
• Barriers to school leadership are exacerbated for women of colour, who are subjected to additional layers of discrimination rooted in race and ethnicity.

Researchers put forward the following list of strategies to help female educators overcome key barriers to leadership:

• Establish strong support networks that cultivate leadership potential among female educators.
• Improve access to professional development, inclusive environments, structured mentorship programs and resilience training workshops for female teachers.
• Create transparent promotion processes.
• Address systemic gender biases.

Workplace exclusion rising, particularly among employees with disabilities 

New data from The Disability Data at Work report has shown a rise in workplace exclusion, with employees in Australia living with a disability experiencing discrimination at twice the rate of their counterparts.

A third of people with a disability reported being left out of social gatherings at work as well as feeling ignored or excluded. Additionally, close to a third of respondents said they chose not to share their disability status with their employer for fear of being seen less favourably, concerns about privacy or feeling as through sharing the information would not result in a positive outcome.

Diversity Council Australia also found that nearly 1 in 5 Australian workers don’t feel valued, respected or able to continue and progress at work, a figure that has almost doubled since 2019.

These findings reflect the urgent need for more inclusive and supportive workplaces. Companies committed to diversity are 39% more likely to outperform their counterparts, showing that inclusive teams drive business innovation and long-term success.

Alan Jones arrested for sex crimes, some against employees

The former broadcaster has been charged with 26 offences against 9 alleged victims, including 11 charges of aggravated assault, 11 charges of indecent assault, two charges of common assault and two charges of sexual touching.

One of the victims was an employee of Jones at the time of the allegations. The man was only 20 when he began working as an assistant for Jones during his time at the radio station 2GB. The alleged victim said that one of his responsibilities was to drive Jones from the 2GB offices to his home in Circular Quay. He said that while the drive only took 10 minutes, Jones would use the time as on opportunity to assault the young man. The alleged assaults including groping and touching the man’s genitals, exposing himself to the victim and forcibly kissing him on the lips. The man also alleges that Jones’ behaviour was well known amongst senior colleagues at 2GB.

One producer from the station said that he saw inappropriate behaviour from Jones on multiple occasions and described a culture of protectionism in the business. Prominent broadcaster Josh Szeps has also revealed that Jones made repeated physical advances toward him as a young producer on his radio show, including trying to kiss him and touch his genitals. Speaking out in defence of Jones, Szeps noted that Jones had promoted him to a senior position very fast, and that he ‘played the cards’ he was dealt during his professional relationship with Jones.

Jones has denied the allegations and intends to defend the case in court.

Former Sri Lanka Test Cricketer slapped with a second ban

Cricket Australia has handed Dulip Samaraweera – former Sri-Lanka Test Cricketer and Women’s Big Bash League Coach – a 10-year ban over allegations of inappropriate behaviour toward a player.

The ban will run concurrently with a 20-year ban handed to him in September after being found to have behaved inappropriately toward a female player. He will be banned from any involvement in Australian cricket for 20 years, meaning he is not able to return to any coaching role within Australia until he is 72.

Long-Running Hawthorne racism scandal reaches settlement 

Hawthorne and the former players and their partners who alleged historical experiences of racial discrimination against the club have reached a financial settlement following two days of mediation.

Hawthorne issued an apology to the former players, their partners and their families. The club said they are committed to ongoing work with the parties involved and that it is committed to providing a safe environment for First Nations peoples and the elimination of all forms of racial discrimination. The club has also recently announced the creation of a First Nations Advisory Committee to improve the culture.

Store manager offered to keep job after suspension for racism and homophobia

An Aldi store manager who was suspended after allegations of racist and homophobic remarks has been offered to keep his job despite the supermarket determining the claims were ‘substantiated on the balance of probabilities’.

The manager was issued a ‘first and final warning’ and is required to complete diversity and inclusion training. The manager was suspended with pay last month after staff members alleged that he had made inappropriate remarks about Muslims, black and Indigenous people, used racist and homophobic slurs, and demeaned co-workers and customers. The manager denies the allegations, and his lawyers lodged a general protection application with FWC earlier this month.

Workers who have not yet been dismissed can apply for general protection if they believe their employer has taken illegal adverse action against them.