Government approves new code of practice on sexual and gender-based harassment
A new Code of Practice on Sexual and Gender-based Harassment has been approved by the Federal Government, giving effect to the model code of practice developed by Safe Work Australia.
The Code supports implementation of the Respect@Work report’s recommendation 35 and complements an employer’s ‘positive duty’ under the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to eliminate certain forms of unlawful sex discrimination.
Employers are advised that codes of practice are admissible in court proceedings under work health and safety legislation and may be relied upon to determine what is considered reasonably practicable. The Code recognises that:
- Women, young workers, those from culturally and linguistically diverse backgrounds, Aboriginal and Torres Strait Islander workers, LGBTQIA+ workers and workers with disability are more likely to experience workplace sexual harassment.
- The likelihood of harassment increases in workplaces where there are power imbalances along gendered lines.
- Workplaces with low worker diversity (i.e. dominated by one gender) and a culture which tolerates or accepts workplace sexual and gender-based harassment can contribute to the prevalence of such harassment.
NSW to reform workers’ compensation amid surging psychological injuries
The NSW treasurer warned that the current workers’ compensation system is not sustainable following the rise of psychological injuries at work.
Research shows that the number of psychological injury claims has doubled in six years, with the average cost of a psychological injury claim rising from $146,000 in 2019 to $288,542 in 2024-5. Accordingly, psychological claims now make up 12% of total workers’ compensation claims but 38% of the total cost.
NSW is set to introduce reforms to the state’s workers compensation system. They include:
- Giving the NSW Industrial Relations Commission jurisdiction over bullying and harassment cases, requiring claims to be heard there first before a workers compensation claim can be made.
- Defining psychological injury, as well as “reasonable management action,” to provide workers and businesses with certainty.
The research statistics underscore the need for employers to protect against psychological injury by dismantling harmful workplace cultures and creating environments that protect and nurture employees’ mental health.
Age discrimination leads to unfair dismissal
A retail worker brought an unfair dismissal case against his employer after allegedly being terminated without valid reason after over three years of employment.
The employer argued that performance issues and declining revenue justified the termination, but only cited vague or minor incidents, which the Fair Work Commission (FWC) rejected. The worker maintained that he was not provided with any written warnings or subject to formal disciplinary proceedings during his employment but was told by the director that he was ‘too old’ to continue working at the company.
The FWC concluded that there was no valid reason for termination and the alleged performance concerns were not addressed with the worker, nor were they the reason for termination. It also emphasised that the employer lacked the human resources support in dealing with employment related issues, leading to the employee being dismissed without the required formalities.
As a result, the termination was found to be harsh, unjust, and unreasonably, as well as lacking substantive and procedural fairness.
Debunking myths about workplace sexual harassment
Work Safe WA has released a new poster promoting a work health and safety approach to preventing workplace sexual harassment and debunking some myths on sexual harassment. Some myths include:
| Myth | Reality |
| Workplace sexual harassment is uncommon. | Approximately 1 in 3 Australians have been sexually harassed at work. |
| Sexual harassment is only repeated behaviour. | Sexual harassment can be a single incident. |
| Sexual harassment only involves physical contact. | Sexual harassment can form any unwelcome sexual contact including verbal. |
| Employers are not responsible if there is an issue between its workers. | Employers are required to take steps to eliminate or minimise the risk of sexual harassment so far as reasonably practical. |
Employers can take a risk management approach to prevent sexual harassment by following these steps:
- Identify workplace sexual harassment risks.
- Assess risks.
- Control risks.
- Review control measures.
- Communicate and consult with workers at each step.
Employers should also consider leadership and culture, education and consultation, workplace design and environment, and safe systems and reporting when implementing this approach.
Women with foreign accents seen as less employable
New research from the Australian National University has found that women with foreign accents are seen as less employable than men and non-foreign accented speakers.
The research notes that language-based discrimination is often less reported on than race or religion-based discrimination but is robustly demonstrated in the literature.
Researchers conducted a ‘perception experiment’ using audio clips of speakers from different linguistic backgrounds whereby listeners were asked to rate the speakers on a scale of employability. Listeners found men equally employable, irrespective of background, whilst second language English speaking women were rated as least employable.
The researchers say that the survey supports the potential for language-based discrimination in employment and urge HR professionals and employers to undertake anti-bias training.
Worker disputes dismissal after refusing investigation
A salesperson has challenged his dismissal before the Fair Work Commission (FWC) arguing that he was not given a fair chance to respond to allegations against him and that the employer’s handling of the matter was procedurally flawed.
Since the worker’s employment in 2022, management had raised multiple concerns with his conduct and said he repeatedly failed to follow established procedures and created an uncomfortable environment for other employees. On one such occasion, a complaint from a client was raised about the worker after she felt unsafe and threatened by him. After the incident, the employer arranged a meeting to discuss with the worker, which he declined to attend. After attempting to reschedule, the employee once against refused, despite the employer emphasising that refusing to engage could impact the outcome of the investigation. The employee was eventually dismissed for serious misconduct.
The FWC found that the employer had a valid reason for dismissal, based on evidence of aggressive and threatening behaviour. The worker had been informed of the allegations and given opportunities to respond but refused to participate. It noted that procedural fairness is an ‘invitation’, which the worker chose not to accept. Ultimately, it found that the dismissal was neither harsh, unjust, nor unreasonable.
Legal service settles with former CEO following unlawful dismissal
The North Australian Aboriginal Justice Agency (NAAJA) has reached a confidential settlement with former CEO Priscilla Atkins following the Federal Court’s ruling last year that it had engaged in unlawful adverse action against Atkins.
The proceedings arose in late 2022 after Atkins lodged a written complaint to the board of directors about the alleged bullying and misconduct of the organisation’s CFO. Following the complaint, NAAJA sent a letter to Atkins’ lawyer in February 2023, indicating that they had “completely lost trust and confidence” in her ability to fulfil the responsibilities of CEO and terminating her employment. The organisation justified the termination based on the belief that Atkins had forged the signature of a chairperson on her contract renewal in 2020, although the Court ruled found insufficient evidence to prove this allegation.
Ticketing giant plagued by toxic workplace culture
TEG, the company behind Ticketek has been accused of having a serious workplace problem where managers humiliate and overwork staff.
TEG announced that its CEO Geoff Jones would be stepping down, following allegations of the difficult workplace environment in which Jones would shout at staff ‘until the walls shook’. Jones has denied the allegations, stating that ‘there is no place for bullying, harassment or misconduct at TEG’.
It is further alleged that TEG’s HR department “buried” two claims of bullying and harassment, while the company’s board were notified of the behaviour and did not take any action.
Legislative reform to restrict NDAs in sexual harassment cases
The government’s efforts to ensure greater transparency around non-disclosure agreements (NDAs) seems to be failing, based on research by the University of Sydney.
In 2022, the government published guidance recommending that NDAs be used on a case-by-case basis rather than as a default, as recommended by the 2020 Respect@Work report. The research found that in a survey of 145 employment lawyers across the country, 75% had never resolved a matter of sexual harassment with NDA terms that allowed the victim-survivor to speak about what had happened to them. NDAs are particularly prominent in workplace settlements involving sexual harassment.
Regina Featherstone, one of the authors of this research, argues that transparency is key to ensuring accountability across the private and public sectors, and to encourage more people who suffer abuse in their workplace to come forward.
The Victorian Government is currently progressing legislative reform to restrict the use of NDAs in sexual harassment cases.
Charity denies allegations of toxic workplace
The Narang Bir-ong Aboriginal Corporation (NBAC) has faced allegations of a toxic environment and inappropriate behaviour from numerous former employees and board members.
CEO Heidi Bradshaw was alleged to be sexually grinding on a colleague at a Christmas party and texting about which member of a sponsored sports team she was interested in. It is also alleged that staff events at the organisation often involved excessive alcohol consumption, including one instance in which a staff member was intoxicated to the point of urinating on bushes during a 2023 Christmas party.
NBAC faces a high turnover rate, with 52 staff members leaving the organisation since March 2022. Three board members who resigned in May 2023 cited concerns about ‘egregious misconduct’.
NBAC has now responded to such concerns, stating that all matters raised have been thoroughly investigated and either found to have no basis or resolved to the board’s satisfaction.
Richard Marles’ Chief of Staff agrees to an out of court settlement
Deputy Prime Minister Richard Marles’ chief of staff Jo Tarnawsky has reached a confidential out of court settlement after she alleged she was bullied by colleagues in the ministerial office.
Ms Tarnawsky claims she was pushed out of her role after she complained that she had been belittled, undermined and blocked from accessing key information. She alleges the bullying began in May 2023 but escalated after she raised a complaint against her colleagues.
Despite the introduction of a number of reforms to make the parliamentary workplace safer, Ms Tarnawasky said there is still much work to be done. She emphasised that employees should feel safe to raise concerns with employers without fear of reprisal, which was not her experience.
Mindfulness in law ‘no longer optional’
Elizabeth Carroll, partner at Holding Redlich, has noted that, with increased concerns around burnout, law firms must take proactive measures to cultivate a workplace environment and culture that prioritises mental wellbeing for employees.
Key strategies include:
- Providing psychological safety: firms need to create a workplace culture where “staff feel secure in expressing concerns without fear of judgement or retaliation”.
- Active listening and validation: leaders should “acknowledge and validate challenges” rather than “dismiss or minimise concerns”, as this fosters a supportive environment and helps reduce feelings of isolation among employees.
- Flexible work practices: providing flexible work options grants employees “a level of control in how they manage workloads and complete tasks where possible”, which plays a crucial role in preventing burnout.
- Training in emotional regulation and resilience: firms should “encourage mindfulness” as it can help legal professionals develop skills to handle high-pressure situations more effectively
The impact of workplace investigations in the education and care economy
Referred to as ‘investigation trauma’, a growing body of research on this potential psychosocial hazard highlights the psychological impact of workplace investigations on employees.
Professor Naweed at CQUniversity reveals that workers in sectors where safety is paramount, such as educators and caregivers, are becoming more fearful of investigations, particularly where a ‘blame-focussed’ investigation process is adopted. It is suggested that this approach can create a toxic culture and ultimately make the workplace less safe.
Naweed recommends the following approach for employers in undertaking investigations:
- Focus on systems not individuals.
- Foster open communication.
- Implement restorative practices.
- Train investigations to be empathetic.
- Provide support for affected employees.
At a time where employers are under a duty to minimise/eliminate psychosocial hazards in the workplace, employers should recognise the harm caused by blame-focused investigations and shift towards a more restorative approach that emphasises learning and improvement.
Apple accused of discrimination
A former Apple retail worker has accused the tech company of racial discrimination after he was directed to stop wearing a pro-Palestinian necklace and bracelet.
Khaled Dibb claims that Apple staff failed to intervene as he was subjected to workplace bullying and harassment by a staff member and customers, before being formally ordered to remove the jewellery in May 2024. He alleges that the company had not disciplined other employees for wearing items that expressed cultural, religious, or political affiliations.
Apple has claimed that they requested Mr Dibb to remove the jewellery as the issue is ‘incredibly sensitive’ and ‘may lead to escalations’ within the store. Mr Dibb’s lawyer has emphasised that the jewellery is not a statement directed against any person or group, but a gesture in support of the people he loves. “Equality and inclusion are more important than ever, and that’s all Khaled wanted in his workplace.”
Employment lawyer Peter Hindeleh has emphasised that discrimination cases such as this one are often difficult and costly to the employer. He urges employers to stay on top of the ‘exceptionally fluid’ concepts found in legislation such as the Racial Discrimination Act to ensure that their conduct does not cause a breach. One way to do this is to implement clear policies and procedures in the workplace.
Apple is expected to defend the allegations at the Victorian Civil and Administrative Tribunal.
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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