Worker leaves early for child care duties, and is then fired!
The Fair Work Commission (FWC) recently dealt with a case involving allegations of unfair dismissal and general protection violations. The dispute centred around a worker who claimed they were dismissed after exercising workplace rights related to employment entitlements, family responsibilities, and temporary absence due to illness. The crux of the matter revolved around whether the worker had resigned or been dismissed. The employer argued that they were simply accepting a previous resignation, while the worker contended that they had been unfairly terminated.
The case traced back to February 2024, when the worker had initially submitted a resignation. However, subsequent discussions led to an agreement for the worker to continue employment with a flexible working arrangement. This agreement allowed the worker to take alternative Fridays off for childcare purposes.
The situation came to a head on 2 May 2024, when the worker left work early due to illness. In response to a message from the employer about cancelled arrangements, the worker explained: “I went home sick. I came in this morning to help what was needed to be done… There is no one to look after [our daughter]. [My wife] has already been home all week caring for her as I couldn’t because we are too busy. I won’t be in tmrw”. The employer replied: “Ok, we will now accept your resignation”.
Later that same day, the worker received an email from the employer stating: “Hi, this is to notify you about the termination of employment. This is effective today May 2, 2024 as per the advice of our Directors. We will process your last pay, annual leave and sick leave credits. If you have questions, please do not hesitate to reach out.” The employer also reminded the worker of expectations regarding punctuality and attendance. During these discussions, the worker mentioned their intention to leave at the end of the year due to family relocation plans.
The FWC ultimately found in favour of the worker, concluding that they had been dismissed at the initiative of the employer. It rejected the employer’s argument that they were simply accepting the worker’s earlier resignation from February.
Victoria progressing clamping down of NDAs in sexual harassment
Radical changes to Australian workplaces designed to better support victims of sexual harassment are inching closer to reality. Victorian Premier Jacinta Allan has released a new discussion paper on the use of NDAs (Non Disclosure Agreements) in settling sexual harassment claims in the workplace, with a view to clamping down on the potential misuse of the legal instrument to silence victims. “The challenge with NDAs, and my information comes from listening directly from victim-survivors, people who have experienced sexual harassment at work, and then have had to be re-traumatised by going through the NDA process, is that it silences victims,” Ms Allan told the Daily Aus podcast ahead of the announcement. The premier said she was not pushing for an outright ban on the use of NDAs.
Some of the potential changes include prohibiting the use of NDAs unless they are requested by the person making the complaint and enshrining a “cooling off” period to give victims of harassment time to make an informed decision about whether or not they want to sign an NDA. The government will look to ensure businesses cannot unduly pressure or influence a complainant to enter an NDA. It will also consider offering complainants the option to waive confidentiality at some point in the future.
Kim, a victim of sexual harassment, said the misuse of NDAs allowed perpetrators to continue their behaviour. “It leaves them without any consequences to their career, employability, or their business if they are owners plus it leaves others vulnerable to their behaviour,” she said. “It essentially allows for the cover up or hiding of illegal and harmful behaviour and practices.”
NDAs were originally developed to help companies protect their trade secrets. There is no clear timeline for when the potential changes could come into effect. If the changes were to come into effect, Victoria would become the first state in Australia to alter how NDAs are used in sexual harassment claims. Legislation to restrict the use of NDAs in workplace sexual harassment cases was a key recommendation from the Victorian Ministerial Taskforce on Workplace Sexual Harassment. Industrial Relations Minister Tim Pallas said the changes would make Victorian workplaces safer.
People with disabilities are twice as likely to experience discrimination and harassment at work
New research has revealed that people with disabilities are twice as likely to experience discrimination and harassment at work. It highlights the critical role of capturing disability data to create safe workplace environments. Drawing on previously unreleased insights from Diversity Council Australia’s (DCA) 2023-2024 Inclusion@Work Index survey, the Disability Data at Work report sheds light on the workplace experiences of people with disability and outlines essential strategies for fostering inclusion.
Unfortunately, people with disability are more likely to experience exclusion at work, with 16% saying they work in non-inclusive teams, compared to 10% of employees without disability. Social exclusion is also rampant, as 35% of people with disability report being left out of social gatherings at work as well as being ignored or treated as though they don’t exist.
It’s estimated that 21% of the population (or 5.5 million people) are people with disability in Australia, and this report shows they are an undervalued and often overlooked talent pool. “The Disability Data at Work report underscores the urgent need for organisations to adopt inclusive practices that respect and empower all employees,” said DCA CEO Lisa Annese. “Behind the troubling experiences faced by employees with disability are deeply rooted personal and systematic biases. Organisations bear a significant responsibility in dismantling these barriers to foster equitable employment opportunities, outcomes, and experiences for people with disability.”
Collecting disability data enables organisations to understand the mix of people in their workplace and experiences of employees with disability. This helps organisations make informed decisions about accessibility, monitor progress and drive change. Despite this, 40% of people with disability said their organisations were not collecting disability status data. And for those organisations who were collecting disability data, close to 30% of workers chose not to share their disability status with their employer:
- 35% feared they would be seen less favourably by managers or overlooked for promotions or development opportunities.
- 39% said they were concerned about privacy and how the information would be used.
- 33% said they didn’t trust that sharing would result in a positive outcome.
“The safe and respectful collection of disability data is essential to increase the workforce participation rate of people with disability. We can’t fix what we don’t understand,” said Australian Disability Network CEO Corene Strauss.
She said the need for disability data is also supported by recent findings from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. “It highlights the need for comprehensive data on employment experiences” to address the “complex and pervasive challenges” found in the report. “By enhancing our understanding of disability data collection and implementing leading practices outlined in the report, organisations can foster environments where every employee feels valued, respected, and fully supported.”
More than a million Australians who want to join the workforce are unable to
New figures from the Australian Bureau of Statistics have revealed that over a million Australians out of paid work have said they are available to start a job almost immediately.
Of the 3.4 million Australians aged between 18-75 without a paid job as of March 2024, 1.3 million wanted a job, with 1.1 million (88%) ready to start within four weeks. This is up from 3.3 million people without paid work in the December quarter. The number of people wanting paid work has also increased from 1.2 million in December, when one million (85%) were available within four weeks. That has now changed to “studying or returning to studies” (39%).
People who wanted to work, but were not available to start within four weeks, had similar reasons to those who didn’t want to work – caring for children or loved ones or suffering from a long-term health condition or disability. “The most important factor associated with either returning to work or commencing work was ‘finding a job that matches skills and experience’, which was rated as ‘very important’ by 30% of people,” the report said. “For people with a long-term health condition, the most important factors were ‘finding a job that matches skills and experience’ and ‘ability to work part-time hours’ (both 27%).” Others noted they were concerned about keeping their income support payments even if they were able to find work. Difficulties with language barriers, education levels and age discrimination were also cited as major difficulties.
The report also highlighted Australians looking for work were seeking out jobs that matched their skills and experience and which allowed them to work flexible schedules. At least 12,000 of those surveyed noted they believed “disability discourages employers” and felt it was a major difficulty in finding work. Tabatha Feher, Chief Adviser of Public Affairs and Advocacy for the non-profit organisation Life Without Barriers, said people with a disability face “apprehension” due to “sustained barriers” when joining the workforce. “I think what we’re observing as a large employer and also as an organisation working with people across the country is that as we’ve emerged from the pandemic, you’ve got workforce changes,” she said. “It’s definitely the time for [employers], whether they’re corporate entities or non-profit entities, to be really considering how they make up their workforce. “And we always say, your workforce should be a representation of the communities in which your employees live, where your companies are and who you’re serving.”
Australia’s unemployment rate edged higher to 4.1 per cent in June, despite 50,000 mostly full-time jobs being created.
Rebel Sport owner dogged by claims of bullying, and questionable travel
Anthony Heraghty, CEO of Rebel Sport owner Super Retail Group, has been accused, in documents filed with the Federal Court by a former executive, of billing the company for expenses and international travel that furthered an undisclosed relationship. A statement of claim, lodged by Rebecca Farrell on July 29, also accuses Heraghty of screaming at staff and being part of a culture of bullying at the retailer.
The statement of claim alleges a volatile environment among the senior executives at the group after an internal review revealed complaints of a culture where employees did not feel free to speak out. According to the statement of claim, staff had reported in an internal Pulse survey conducted by Culture Amp in October 2023 that they needed a leader “not encumbered by personal relationships or [who] is egotistical or creates a different class for himself and those close to him”. In an executive team meeting to discuss the survey, the statement of claim alleges, a visibly angry Heraghty told the team: “If you’re not on the bus, then get off and go. You’re not welcome here.” Other allegations in the statement of claim included a managerial meeting at which Heraghty “was screaming at them to such an extent that he was spitting at them”.
Two internal whistle blower complaints were lodged last year, in November and December, against Super Retail Group. The complaints alleged a “culture of bullying” by Heraghty and the group’s then HR manager Jane Kelly, and referenced an “intimate relationship” between the two. The CEO’s executive assistant had resigned in October 2023 due to the relationship, after having been informed by the CEO’s ex-wife of same and observing questionable expenses, travel arrangements and the like in relation to the CEO and CHRO [Chief Human Resources Officer] Kelly,” the statement of claim said.
A directions hearing on July 31 revealed that the parties are in dispute about whether a settlement was reached over the termination. Farrell is seeking damages, penalties, compensation and an apology from Heraghty and Pitkin, who is stepping down as chair after the group’s October shareholder meeting. Farrell is claiming to be a whistle blower who was allegedly bullied, harassed and sacked from her job after raising complaints of serious corporate governance breaches.
Family ‘failed’ by coronial inquest that found no link between workplace bullying and Adelaide father’s suicide
The family of an Adelaide man bullied at work say they’ve been failed by an inquest that did not link workplace harassment to his suspected suicide. Deputy Coroner, Ian White, accepted that forklift driver and father of three, Peter Howard, had experienced “inappropriate behaviour” at his workplace, packaging factory Orora, and reported many incidents to his superiors. But White could not determine whether Howard committed suicide or if his car spontaneously exploded outside the Athol Park factory in August 2018.
Over the 27 years of working at Orora, Howard wrote in a notebook his colleagues had put wet rags on his forklift seat, chilli flakes in his drink bottle, hidden his forklift keys, poked him in the ribs and hit him in the head with rolled up tape. Some incidents were not reported to human resources. On the day he died, a staff member described him as being “emotional” and “holding back tears” when they saw him sitting on the ground next to a tree. Howard had accidentally broken a pallet, admitted fault, and was yelled at by a colleague. Howard left his workplace without telling anyone to purchase almost 65 litres of petrol without any reason. He ignored a phone call from his supervisor, parked his car outside the factory, and the car ignited in flames in full view of staff.
His friends and family have always believed he committed suicide because of harassment at work. The 59-year-old had attempted to take his life once before, his GP told the inquest. White said the behaviour towards Howard was “at the very least as consistent with or bordering on bullying”. He said it was “undeniable” the dispute with a colleague in the morning was on Howard’s mind when he purchased the petrol, but it was not enough to make a conclusive finding. “Ultimately, the evidence does not leave me comfortably satisfied to find that he died from suicide or spontaneous ignition,” White said in his report. He said the quick turn of events on the morning of Howard’s death were “incomprehensible” given his long work history at Orora, family and social life. White made no recommendations in the report, and said new workplace regulations that came into effect in South Australia in 2023 provided more guidance on managing psychological hazards at work. He said there had been significant developments at Howard’s workplace since the incident, but did not provide further detail.
Schwartz said her brother took all possible means to stop the bullying, but didn’t know he could also request a stop bullying order through the Fair Work Commission.
New migration laws will help protect exploited workers
In Australia, many migrant workers fear addressing workplace exploitation due to potential immigration repercussions. To address this, the Migrant Justice Institute and Human Rights Law Centre spearheaded a national coalition that proposed two significant immigration reforms. Their comprehensive plan, “Breaking the Silence,” was endorsed by over 40 organisations and outlined measures to allow migrant workers to enforce their labour rights without risking their visas.
In July 2024, the Australian government implemented these reforms, introducing a short-term ‘Workplace Justice Visa’ and protections against visa cancellation for exploited migrant workers who take action against their employers.
Migrant worker exploitation is pervasive in Australia, with many underpaid and afraid to report due to fear of losing their visa status. The Fair Work Ombudsman (FWO) has limited capacity to enforce labour laws, and previous efforts like the Assurance Protocol have been largely ineffective. The new visa reforms aim to help workers address various forms of exploitation, such as underpayment, workplace injury, bullying, sexual harassment, and discrimination.
The Workplace Justice Visa allows migrants to stay temporarily in Australia to pursue justice, provided they obtain a certification of their exploitation from a government agency or accredited third party. The visa also includes full work rights and no application fee. Additionally, protections against visa cancellation ensure that migrant workers who have breached their visa conditions due to exploitation can seek justice without fear of deportation. These protections extend to those on visas without work rights or who have breached non-work-related visa conditions, considering their experience of exploitation in cancellation decisions.
Paul Kent launches unfair dismissal proceedings against News Corp
NRL commentator Paul Kent has made an application to the Fair Work Commission, launching an unfair dismissal case against News Corp. In July, Kent was sacked from his commentary jobs with both Fox Sports and News Corp after video of a street brawl was shared on social media. The NRL 360 co-host and Daily Telegraph columnist pleaded guilty to public fighting after footage showed him being thrown into a tree in Sydney’s Inner West.
In December 2023, seven months on from his arrest and first standing down from his roles at Fox Sports and The Daily Telegraph, a Sydney court found Kent not guilty of allegations he assaulted his then-partner. In May last year, police were called to Kent’s Lilyfield home, before he was taken to Surry Hills police station, where he was charged with common assault and choking a person without consent. Kent allegedly got into an argument with a 33-year-old woman before the police were called. Magistrate Daniel Rees found that the charges could not be proven beyond a reasonable doubt, concluding that Kent “was acting in reasonable self-defence of his property” after having his phone taken.
In 2022, Kent was dropped by Triple M football following the fallout from Anthony Maroon’s on-air walkout. A week earlier, ahead of the Round 8 clash between the Dragons and Tigers, Maroon became increasingly frustrated over jokes made by co-hosts, Kent, James Hooper, and Gorden Tallis, at his expense about the Australian Taxation Office. Maroon eventually walked out of the studio, mid-program, forcing Kent to anchor the rest of the show.