Australian workers push back against DEI programs
Employee resistance to diversity, equity and inclusion (DEI) initiatives is rising in Australia as companies struggle to explain the rationale for them and the re-election of Donald Trump emboldens critics to voice their concerns.
A recent review into the ongoing transgressions occurring at mining giant Rio Tinto revealed that mishandled DEI was fuelling resentment towards women workers. This was displayed by an increase in workplace bullying towards female employees by their male colleagues. The report stated that “This change can be explained by a range of factors, including increasing retaliation in the form of gendered bullying as a response to Rio Tinto’s efforts to promote gender diversity and inclusion”.
Managing partner of Marque Lawyers, Michael Bradley says “we can expect to see diversity and inclusion come under serious fire in Australia… much of what has been gained over the past 50 years or so, in terms of social and cultural equality, is at risk of being unwound.”
Diversity Council of Australia research published last year found that 7% of Australian workers opposed or strongly opposed diversity and inclusion programs at work – up from 3% in 2017. Chief Executive Women CEO Lisa Annese said the increased backlash was often based on misinformation and inaccurate assumptions.
Employers are urged to have honest and open conversations about DEI policies with employees, particularly those who do not understand why such programs exist.
Firing an employee with a criminal record – Is this discrimination?
At a federal level, it’s considered discrimination if an employer doesn’t hire someone or terminates someone’s employment because of an irrelevant criminal record. This is also the case if an employer treats an employee unequally in some other way, such as by not promoting them.
According to Sean Melbourne, director of Source Legal and Workplace, the starting point is that a criminal record will be relevant if it makes the person unsuitable based on the inherent requirements of the job. For instance, a criminal record would be relevant to a job in childcare if it prevents the person from passing a working with children check.
The legislation that works to protect workers with a criminal record from discrimination enables employees to make a complaint to the Australian Human Rights Commission (AHRC), which can then make non-binding recommendations to the employer.
Melbourne mentions that it may also be pertinent to take unfair dismissal into account when terminating someone’s employment because of their criminal record. Termination on this basis may constitute unfair dismissal if the employee’s criminal record isn’t relevant to their role.
This serves as a reminder for employers to think twice before taking any action regarding an employee’s criminal record, particularly in the case of dismissal.
Employers’ liability for workers’ compensation claims for remote employees
Catherine Dunlop, a partner at law firm Maddocks believes that we are likely to see increased debate and possibly case law on employees’ right to work from home. As such, employers and HR professionals must review internal processes to ensure compliance with safety obligations.
With the lines between home and work becoming increasingly blurred, it is incumbent upon workplaces to ensure that they are providing safe working environments, lest they be liable for compensation for injuries sustained at home.
A recent compensation case involved a council worker who tripped and fell on a metal fence that she had installed to keep her puppy out of her home office. The South Australian Employment Tribunal ruled in the worker’s favour, finding that her home was her place of employment at the time the injury occurred and that the puppy fence was a feature of that location.
Another case against Telstra in 2011 found an employer liable for injuries sustained while working from home.
“Employers need to address both physical and psychosocial hazards, so not just slips and trips risks but also isolation, high or low work demands or control, the risk of family violence or the risks of exposure to traumatic material – which could be made worse by accessing this at home with support arrangements”, says Dunlop.
This article makes the case that, as remote work becomes more prevalent, employers must understand their potential liabilities concerning workers’ compensation claims from employees working from home.
Employer not liable for employee’s alleged assault at work event
An employee of Hall Payne Lawyers alleged she was sexually assaulted and raped during a November 2023 work trip that required her to stay overnight at a resort in Grindelwald, Tasmania. She said the terms of her contract of employment obligated her to attend the event, and her presence at the resort, including the intervening night, was “in accord with her employment”.
While the firm accepted the employee suffered from post-traumatic stress disorder (PTSD) and had paid for treatment by a psychologist, it disputed the workers’ compensation claim because her employment was “not the major or most significant factor” in the alleged rape.
The firm argued her employment on the night came to an end at 10.30pm, and the alleged rape took place 3.5 hours after this. Further, it said it did not “encourage or induce such activity”.
Under section 81a of the Workers Rehabilitation and Compensation Act 1988, an employer can cease paying compensation to an employee if a reasonably arguable case exists concerning liability.
The tribunal found the employee’s attendance at the conference “was not only induced or encouraged by the employer but was in fact required by the worker’s contract of employment”.
“However, it is arguable in my view … that the activity causative of the worker’s PTSD, namely the sexual assault, was not an activity induced or encouraged by the employer, and hence, there was an insufficient connection with the worker’s employment to create a liability in the employer to pay compensation,” the tribunal said.
Victoria Police investigate 683 employees for sexual and family violence offences
Victoria Police have investigated 683 of its own employees in the past 5 years over alleged sexual and family violence offences. The staff were under investigation for rape, child sex offences, sexual harassment, predatory behaviour, and family violence between January 1 2019 and June 30 2024, according to figures obtained under the Freedom of Information Act.
The alleged offences took place while staff were on and off duty, and have been investigated at by a specialist squad focused on crimes of that nature among the workforce.
A Victorian Equal Opportunity and Human Rights Commission review in 2015 found that sexism was entrenched in the force’s culture, and there was also a high tolerance for sexual harassment in the force. Victoria Police established the Sexual Offences and Family Violence Unit in 2021 to investigate offending within its ranks. An Employee-Related Family Violence Policy was introduced so that disciplinary action could be taken against an employee who has perpetrated family violence, regardless of whether criminal offences have been identified or proven.
The force urged anyone with concerns or allegations about a staff member to come forward to local or specialist police, with perpetrators facing the possibility of dismissal.
High profile barrister given one year ban after sexual misconduct
High-profile barrister Charles Waterstreet was found in April to have sexually harassed three female staff members. The NSW Civil and Administrative Tribunal has now ruled that he will be able to reapply for his certificate to practise law after just one year.
The tribunal previously found that complaints made against Waterstreet by the three young women between 2014 and 2019 constituted sexual harassment. The incidents included showing nude images of himself to a female employee, making sexually explicit remarks and publicly watching pornography while at work.
Waterstreet has described himself as “politically incorrect”, telling a podcaster “I got into trouble for… slips of the tongue”. The tribunal found that his comments suggested he still had some way to go before fully accepting responsibility for his actions. It has agreed that insight is the first step, with the next being behavioural change.
Waterstreet was also ordered to pay the costs of the Council of the New South Wales Bar Association in the litigation.
Carlton President subject of AFL investigation following nude image scandal
Carlton Football Club President Luke Sayers has come under increasing scrutiny after a photo of a penis was posted from his X account tagging a female executive of one of the club’s sponsors. The nude image was posted late on January 8 and was up for more than 10 minutes before being removed.
“Sorry my account has been hacked – please ignore all posts”, Sayers wrote. He has denied posting the photo to his social media account and says he’s engaging with the AFL’s integrity unit over the matter.
The AFL said the Carlton Football Club had made it aware of the social media post and that the league’s integrity unit was making ongoing enquiries. An AFL spokesperson also said the unit was providing appropriate assistance and support to those required.
Award winning chef accused of racism and bullying
The Age has published an investigative report in which former staff members at Moonah Victoria accuse owner and chef Tobin Kent of bullying, racism and providing alcohol to underage staff. 14 current and former employees and colleagues were interviewed, some of which recounted experiences of bullying so severe they were diagnosed with work-related stress or anxiety.
Amy Tsai worked as a sommelier and front-of-house manager in 2021 and said racist behaviour was common, describing experiences where Kent mimicked Asian people and treated staff differently based on their race. During her time working at Moonah, Tsai developed anxiety, and saw a psychologist, from whom she obtained a letter to share with Kent. When Tsai presented the letter to Kent, she said he dismissed her concerns and nothing changed, following which she resigned.
On top of these allegations, three additional sources claimed at least two underage girls were supplied alcohol by Kent while working shifts at the restaurant. Kent has issued a statement claiming he is “committed to ensuring a safe, inclusive and supportive” workplace, and would introduce “tailored policies” to manage bullying, harassment and staff alcohol consumption.
Teen allegedly raped by healthcare worker during medical examination
A man has been arrested and charged with rape and indecent assault after a teenage girl was allegedly sexually assaulted during a medical examination.
The Australian Health Practitioner Regulation Agency (AHPRA) has been notified, indicating that the alleged perpetrator is a doctor or healthcare worker, and is “undertaking an urgent examination of the matters raised”. The regulator has the power to permanently forbid health practitioners from working in the profession across the country.
The man is set to appear in Adelaide Magistrates Court on 25 March.
KFC manager awarded compensation for breastfeeding discrimination
A Canberra mother employed as a manager at KFC was awarded $90,000 in compensation by the ACT Civil and Administrative Tribunal (ACAT).
The tribunal found that the woman faced discrimination when she was directed to express breastmilk in a toilet or storeroom. It found the young mother was not given access to flexible work arrangements, despite requesting them across a seven-month period before she resigned.
The woman was first told she should express milk in the toilets, before being provided with a camping toilet tent, which she was told she could use in a storeroom without a door. Each time she was required to do so, she had to assemble the tent herself, and no attempt was made by her employer to provide a door.
ACAT also found that she was spoken to by two senior adult males who asked “invasive” questions about her breastfeeding needs. She was further told she could not leave the restaurant during her breaks to express milk elsewhere. A suggestion was also made to give up her permanent management position and become a casual employee.
Woolworths terminates employees following 17-day strike
After a 17-day strike that resulted in approximately $100 million in lost sales, Woolworths has terminated two employees who participated in the industrial action.
The strike was organised by workers demanding better pay and conditions. Woolworths stated that the dismissals were due to breaches of company policy during the strike.
Paul O’Halloran, employment law partner at Dentons Australia said “Employees are not immune from disciplinary action just because they may be exercising lawful workplace rights, such as the right to strike, concurrently with behaviours that might contravene a code of conduct.”
O’Halloran offered an example: “A decade ago, in the case of Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, the High Court held it was not unlawful to dismiss an employee who waved a sign with offensive words on it during a picket at the employer’s mine if in doing so the employee breached a code of conduct to behave in a respectful way. The High Court accepted the evidence of the decision-maker at BHP Coal, who said that the employee was dismissed for breaching company policies and not his involvement in union activities.”
EEO Specialists works with organisations to enable safe and respectful workplaces. We offer a range of in-person workshops as well as online courses. If you would like to have a confidential discussion about workplace behaviour and compliance, please call Franca Sala Tenna on 0405 134 187 or email franca@equalopportunitytraining.com.au