Victorian company fined $100,000 over sexual harassment risk
Blisspell Pty Ltd, trading as Toy Networx, was recently sentenced in the Heidelberg Magistrates’ Court in Victoria. It was found guilty of failing to provide or maintain a workplace that was safe and without risks to health.
In January 2023, a worker made allegations of inappropriate behaviour at the workplace, including comments and text messages of a personal and sexual nature from one of the company’s directors.
A WorkSafe investigation revealed that from October 2022 to January 2023, Blisspell had no formal system in place to identify, prevent, manage, investigate or respond to inappropriate behaviours in the workplace.
The court found it was reasonably practicable for the company to have:
- Reduced the risk of injury by developing a workplace behaviour policy that described unacceptable behaviours, including sexual harassment.
- Provided a reporting and response process for workers.
- Implemented the policy by training managers, supervisors and workers.
Editorial note: This is a timely reminder to check if your organisation complies with recent changes to workplace behaviour legislation. Join lawyer and workplace behaviour expert Franca Sala Tenna to learn more about WorkSafe Prosecutions in a live webinar on June 18, 1-2pm AWST. Click here for more details.
Right to disconnect laws to be tested for the first time
The case of a Queensland teacher suing her former employer for wrongful dismissal has been dubbed as the first case testing the federal government’s right to disconnect laws.
The teacher has claimed she was fired after she refused to respond during school holidays to allegations of inappropriate behaviour. The school allegedly demanded she respond, which the teacher refused to do, resulting in the school finding the behaviour claims were substantiated. In her claim, the teacher reportedly accused the school of breaching her right to disconnect.
The new laws grant employees the right to refuse to monitor, read or respond to contact or from employers, unless that refusal is unreasonable, as in the case of a work-related emergency. The law aims to improve work-life balance and reduce psychosocial hazards such as stress and burnout.
The teacher has filed a statement of claim in the Federal Court, but the trial is yet to commence.
Mental health breakdown: Worker claims dismissal and discrimination
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was dismissed after experiencing mental health difficulties, arguing her termination breached anti-discrimination provisions of the Fair Work Act 2009.
The worker claimed she was demoted and told to perform cleaning duties after suffering a mental health breakdown. The employer argued that the worker had abandoned her employment by choosing to leave the workplace without notice.
The FWC found that the manager’s actions in telling the worker’s husband that he and the worker needed to leave the premises amounted to termination of the worker’s employment. The issue of discrimination has now proceeded to mediation.
This case demonstrates the importance of clear communication and proper procedures when managing employees experiencing mental health difficulties.
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
NSW Government scraps controversial workplace bullying policy
The NSW government has updated proposed reforms to the NSW worker’s compensation scheme announced in March.
The original policy meant that workers would need to obtain court verification from the Industrial Relations Commission that bullying, racial abuse, or sexual harassment occurred and caused psychological injury before getting compensation.
The updated reforms have scrapped this policy, replacing it with “an expedited 8-week claims assessment process for psychological injuries caused by bullying or harassment”. The reforms passed the NSW state parliament’s lower house last Wednesday.
Employee fired for harassment during union meeting
The FWC recently dealt with an unfair dismissal application involving a worker who was terminated following his conduct at a union meeting.
The worker argued that his dismissal was unfair and was retaliation for making a prior bullying complaint against another employee. He had been employed since March 2021 and his employment relationship deteriorated following a union meeting in September 2024. During the meeting, he made several aggressive statements accusing a union delegate of bullying and intimidation. He also challenged the delegate by saying “put your balls on the line” and repeatedly addressed him as “kid”.
Following complaints received after the meeting, the employer commenced a formal investigation. The worker was eventually terminated in October 2024 after several meetings and communications.
The FWC found that the worker’s confrontational behaviour during the meeting provided a valid reason for dismissal. The conduct was described as unreasonable and intimidatory and constituted harassment under the employer’s workplace behaviour policy.
However, despite finding a valid reason for dismissal, the FWC identified significant procedural problems in how the termination was conducted, including that the worker was not properly informed about the specific conduct that formed the basis for dismissal.
Eventually the FWC concluded that despite procedural shortcomings, the seriousness of the worker’s conduct outweighed the procedural failures.
Editorial note: This case is unusual. More often the person would receive compensation if the employer has not followed due process. While the employer was fortunate on this occasion, a safer option is for staff to be trained in how to conduct workplace investigations especially where dismissal is a likely outcome – if the allegations are substantiated. EEO Specialists Grievance Officer Workshop is ideal for this: http://www.equalopportunitytraining.com.au/grievance-officer-training/
Religious exemptions and discrimination legislation
This recent case is a timely reminder for employers on how to lawfully implement and enforce workplace health directives or policies involving sensitive issues like religious belief.
A former security officer at the Gold Coast Hospital, was subject to Queensland Health’s mandatory COVID-19 vaccination directive. He applied for three exemptions under the directive that concerned justification of him holding a genuine religious belief, which was denied by his employer. He was subject to an employment disciplinary process and was terminated in February 2022 for failure to comply with a requirement to be vaccinated.
In March 2022, the security officer applied to the Queensland Industrial Relations Commission (QIRC) for reinstatement and lodged a complaint with the Queensland Human Rights Commission for a contravention of his rights under the Human Rights Act 2019 (Qld) (HRA) or the Anti-Discrimination Act 1991 (Qld).
The application was recently dismissed by the Queensland Supreme Court, which confirmed the directive and the process used by the employer to deny his exemption were lawful and reasonable. The court held that while individuals are free to hold religious beliefs, they are not entitled to act on them in ways that may harm public or workplace safety, particularly in environments like healthcare.
While public sector entities in Queensland must comply with the HRA and state anti-discrimination legislation, similar principles apply for the private sector under the Fair Work Act 2009 (Cth), federal anti-discrimination legislation, and work health and safety laws.
Harassment and bullying widespread at ANU College
A review into gender and cultural issues at the Australian National University’s (ANU) College of Health and Medicine has found that harassment and bullying of both staff and students is widespread. The report made key findings, including:
- Lack of proper accountability systems.
- Poor and disrespectful culture.
- Gender bias, sexism and racial discrimination.
- Poor systems of work which contribute to exploitation, discrimination and bullying.
- Ineffective complaints management system.
The review also found that at ANU’s constituent school – John Curtin School of Medical Research – only 3 of the 18 academic staff with continuing positions were women. It found no effective steps had been taken to address gender bias, sexism and racial discrimination.
The report made 17 recommendations to address the findings, which ANU has committed to implementing.
Senator discloses inappropriate behaviour by parliamentary colleague
An independent senator alleges she was subjected to sexually suggestive and racially insensitive comments by a male colleague.
The comments were allegedly made at a social function she attended through the course of official parliamentary business and included things such as “let’s get some wine into you and see you dance on the table.” The Senator said the comments were sexually suggestive and made her feel singled out as a Muslim woman who did not consume alcohol.
The senator made a complaint to the Parliamentary Workplace Support Service (PWSS), an independent body created in the wake of Brittany Higgin’s allegations that she was raped in Parliament House by Bruce Lehrmann.
According to the first annual report released by the PWSS in October last year, the agency handled around 30 serious cases of wrongdoing, including sexual assault, harassment and stalking.
SafeWork NSW finds anti-Semitism at Sydney University
A preliminary report conducted by SafeWork NSW into anti-Semitism at Sydney University has found that inadequate actions were taken to protect Jewish employees during the period from October 2023 to September 2024.
A total of 23 Jewish employees and staff had filed a workplace claim against university management for psychosocial harm in September 2024.
After visiting the campus, SafeWork NSW described the workplace as a ‘high risk psychosocial hazardous workplace’ for Jewish staff during this period. It claimed that the university ‘failed to take reasonable actions to manage, reduce and eliminate active antisemitic conduct on campus’ despite having the authority to do so’.
The report claimed that the university failed to ‘take action’ during an eight-week protest and encampment taken by pro-Palestinian students, which reportedly left Jewish staff feeling ‘fearful’ and ‘anxious’.
SafeWork NSW has decided that a full investigation into potential contraventions will not be carried out.
Pride Month: LGBTQIA+ inclusion at work
Many Australians who identify as LGBTQIA+ continue to face discrimination in the workplace.
Recent statistics indicate that 2 in 5 of this population report experiencing non-inclusive behaviours (40%) and sexual harassment (39%) at work, demonstrating that employers still fall short of achieving equality at work.
LGBTQIA+ employees are less likely to feel they can be themselves at work (10.6%), to feel a sense of belonging (9.8%), and to feel mentally well (9%) compared to non-LGBTQIA+ colleagues.
Not only is exclusion of LGBTQIA+ employees a discrimination risk but fostering an exclusionary environment may pose psychosocial hazards for employees. Employers are encouraged to create an inclusive and safe environment for employees of all identities.
Workers experiencing discrimination and gender-based violence
Australian National University’s Lindy Kanan has been investigating the experiences of workers from Pacific Island countries and Timor Leste employed in Australia under the Pacific Australia Labour Mobility Scheme (PALM).
Ms Kanan conducted dozens of interviews and her report includes accounts of female PALM workers being subjected to sexual harassment and assault – particularly on sites where workers shared accommodation. Some PALM workers said they had been pressured by their employers for sex in exchange for more work hours and income. Others were reportedly fired and sent back to their home country if they were found to be pregnant.
PALM workers are protected by the same workplace rights and laws as Australians and are not required to report pregnancy to the Department of Employment and Workplace Relations (DEWR) unless it affects their ability to work or in the case of a medical emergency.
DEWR is reportedly working on a long-term plan to better support PALM workers while they are in Australia, specifically those experiencing gender-based violence.