Woolworths employee alleges Brad Banducci “vicariously liable” for sexual harassment 

Marc Estonina, a shelf stacker at Woolworths Caringbah is personally suing outgoing Woolworths Group CEO Brad Banducci over claims he should be held vicariously liable for sexual harassment and discrimination. The claim against Banducci was filed in the Federal Court last month with allegations that, while Estonina was working as a front-end team member, he was discriminated against based on his gender and sexual orientation. 

Estonina, who started with the company in 2007 and is self-represented on the matter, claims Banducci breached sections of the Fair Work Act that relate to a company’s responsibility to ensure its workers are not discriminated against based on their sexual orientation or age. He also alleges Banducci should be forced to take responsibility for sexual harassment he experienced while working in the store. The claims do not suggest that Banducci personally discriminated against or sexually harassed Estonina, just that he should be held responsible for the alleged misconduct. 

While the claim has been described as “highly unorthodox” by Swaab workplace and employment partner Michael Byrnes, it does come at a challenging time for the Woolworths brand after scrutiny over its Australia Day sales and price gouging scandals. “In circumstances like this, we have an employee who is a team member in a store, and it’s highly unorthodox and unusual to be suing the CEO personally,” he said. “It’s entirely conventional and reasonable to seek to sue your employer, but to bring proceedings individually against the CEO is unorthodox”. “When you’re dealing with a CEO who has thousands and thousands of employees, the fact that one of those employees might have or is alleged to have been subject to conduct which breaches the Act doesn’t mean the CEO is therefore also liable for that breach. As a general concept, that seems like a far-fetched proposition,” he said. “The applicant seems to be claiming that because Brad Banducci didn’t do enough to stop this conduct or perhaps, he didn’t enforce a policy, therefore he is personally liable”.

The case against Banducci is due to be heard before Judge Nicholas Manousaridis on August 7th. Estonina has reportedly also filed a case against Woolworths.  

Director ‘forces’ manager to leave before the end of notice period: is it dismissal? 

The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed he was dismissed while his employer maintained that he had voluntarily resigned.

The worker has been a PM Manager at a transport company since June 2023. On 20 March 2024, he submitted his resignation with one month’s notice, intending to finish on 19 April 2024. However, his employment ended abruptly on 28 March 2024 following a phone conversation with the company’s owner/director. 

The worker’s relationship with his direct manager had been strained, and he had raised concerns about his work environment. After submitting his resignation, the worker filed a grievance report alleging bullying and constructive dismissal. This action further complicated the workplace dynamics. The main point of contention was whether the worker had been dismissed or had resigned.  

Both parties provided slightly different accounts of this conversation, but neither mentioned any discussion about payment for the remaining notice period. The worker claimed that during the phone call, the owner/director told him that “Things are not working out. You don’t want to be here so you can finish up now. Give your work phone and fuel card to [the manager] and leave.” He argued that this constituted a dismissal, as he was not given a choice to work out the remainder of his notice period. The worker also maintained that he had continued to perform his duties diligently after giving notice, often working long hours. On the other hand, the employer said that the worker had been unhappy in his role and had expressed a desire to leave early. They argued that the conversation on 28 March was about giving the worker the option to leave immediately if he wished, without any obligation to do so. 

After considering the evidence, the FWC determined that the worker had indeed been dismissed. It emphasised that the crucial factor in such cases is whether the employee had a real choice to work out the full notice period with pay. “Because there was no discussion at all about working the balance of the notice period for pay, or paying the balance of the notice period, or not paying the balance of the notice period, it cannot be said that [the worker] freely agreed to make his resignation effective immediately.” Therefore, the Commission added, “I am satisfied that the employment ended at the initiative of the employer when [the owner/director] initiated discussion with [the worker] about finishing his employment earlier than the date specified in the resignation notice. On the evidence I am not satisfied that [the worker] freely chose to bring forward the effective date of his resignation.” 

The decision underscores the need for employers to be cautious when discussing early departure with employees who have given notice. Without clear agreement on all terms, including payment, such discussions could potentially be interpreted as dismissal. The case also highlights the complexities surrounding the definition of “dismissal” under the Fair Work Act. Even when an employee has given notice to resign, subsequent actions by the employer could potentially turn the resignation into a dismissal, opening the door for unfair dismissal or general protection claims. Consequently, the FWC scheduled the matter for further conference. 

Australian Olympic coach withdraws on eve of Paris departure after allegations of inappropriate behaviour 

Jeb Silsbury, a high-performance gymnastics coach, withdrew from the Australian Olympic team the day before he was due to fly to Paris after allegations of inappropriate behaviour, made by a former colleague, came to light.

The Australian Olympic Committee has confirmed Silsbury, who was set to travel to Paris today, withdrew as a team coach on Thursday after the ABC raised the allegations with the body. Included in the claims are that Silsbury made comments about his colleague’s breasts and “slapped” her bottom. Questions have been raised as to whether he should have been selected until allegations could be fully probed. 

A spokesman for the Australian Olympic Committee on Thursday said the organisation had deselected Silsbury after he withdrew as a coach. “The AOC was not aware of any integrity matters concerning Mr Silsbury’s nomination for the Australian Olympic Team when considering his suitability for selection,” the spokesman said. “Further, all members of the Australian Olympic Team are required to make such declarations when signing the AOC Team Membership Agreement.”  

‘Stress disorder’ caused by work? Supreme Court resolves burden of proof in claim 

The Supreme Court of Tasmania recently dealt with a case that shed light on an important aspect of workers’ compensation claims. The ruling addressed the question of who bears the burden of proof when an employer contends that a worker is not entitled to compensation payments under specific circumstances.

The decision touched on potential significant implications for both employers and employees in Tasmania, particularly concerning stress-related claims in the workplace.

The case revolved around a dispute between a paramedic and his employer, Ambulance Tasmania, regarding a workers’ compensation claim for a stress disorder allegedly triggered by an ongoing investigation into a breach of conduct. 

It centred on the interpretation of Section 25(1A) of the Workers Rehabilitation and Compensation Act 1988. This section outlines situations where compensation is not payable for mental illness or disorders arising from certain reasonable actions taken by employers. The key question was whether the worker had to disprove the applicability of these exceptions or if the employer had to prove them.

The dispute originated when the paramedic made a claim for workers’ compensation in August 2021, describing his condition as a stress disorder. The employer disputed the claim, and the Workers Rehabilitation and Compensation Tribunal (WRCT) initially held that a reasonably arguable case existed concerning the employer’s liability. As a result, an interim order was made for compensation not to be payable.  

The court’s decision upheld the original determination that the employer bears the onus of proving that Section 25(1A) applies in cases where they seek to deny compensation based on this provision. 

New report finds governments at all levels across Australia failing on racism 

A new report has found governments and their departments at all levels across the country are failing to adequately identify and address racism – even avoiding the term ‘racism’. It found that approaches across the board are ad-hoc, disjointed, reactive, and lacking coordination between governments, agencies and sectors. The report was produced for the Australian Human Rights Commission by PwC Indigenous Consulting and the Jumbunna Institute for Indigenous Education and Research at the University of Technology Sydney.   

The report outlines that negatively racialised communities are forced to compete with one another for funding to support affected communities and that there is little focus on addressing racism against First Nations communities. The report also identifies a lack of political bipartisanship as an obstacle to action. National Race Discrimination Commissioner Giridharan Sivaraman said: “This report shows governments at all levels in Australia are not taking seriously enough their responsibility for action to address racism. If some areas of government are reluctant to use the term ‘racism’, how can they tackle it?”  

The report recommends the development of a clear whole-of-government strategic approach to addressing racism. Other recommendations included developing a nationally recognised definition of racism, and anti-racism education in schools.