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Equal Time News February 2014

 

     

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    2014 seminar program kicks off

    The Anti-Discrimination Board’s 2014 seminar program is about to kick off, with the first seminar on grievance handling to be held on Wednesday March 19.

    In 2012-13, 11% of complaints to the Board related to victimisation, which occurs when a person is treated unfairly for making a complaint, either within their organisation or with an external agency such as the Board. A fair grievance procedure and training for staff who will be implementing it is crucial for organisations that want to avoid costly discrimination complaints and treat all their employees fairly.

    This year we have two new seminars. One is Respect and responsibilities,which is aimed at staff who need raised awareness around respectful workplace cultures and their responsibilities to ensure a harassment-free workplace. The second is Hot topics, which gives the lowdown on a number of current issues: age discrimination, victimisation and how to develop effective policies and procedures.

    Another seminar that you can’t afford to miss is on The challenge of social media. The dividing line between work-related and private communications has become increasingly blurred with the use of so many different kinds of media, and this can have consequences for employers and their employees. Our seminar will help you avoid the problems that can arise.

    Also included are more seminars on aspects of the grievance process, preventing bullying and harassment, managing age diversity, fair management of people with psychiatric disabilities and recent case law that may affect you.

    The Board’s seminars, held in both Sydney and Newcastle, provide an excellent opportunity for managers and human resources professionals to get together to share experiences, strategies and ideas, and discuss issues with the Board’s staff. Register now!

    More information and registration...

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    Social media creates new dilemmas

    The distinction between work-related and private communications has become increasingly blurred with the advent of social media. This can have consequences for employers and employees in terms of discrimination, harassment and bullying.

    In a recent case before the Fair Work Commission, a human resources manager and long-term employee of a car dealership was dismissed after her boss found a private Facebook message she had sent to his estranged wife. The HR manager, who was a longstanding friend of the estranged wife, confided in the message the employer was not popular with his employees and was considered to be a ‘tosser’ by most people in the motor vehicle world.

    The employer read the message after using his wife’s password to access her Facebook account. He then wrote to the HR Manager accusing her of discussing work matters in the Facebook message, disclosing confidential information, breaching the standard of trust and confidence inherent in her position and failing to act in good faith. She was dismissed two days later.

    The company had a social media policy which forbade employees from making derogatory comments about colleagues and the company. However the HR manager argued that her message was not covered by the policy because it was private.

    The Fair Work Commissioner agreed. He said that a policy which attempted to ban private communications between employees and third parties in their own time using their own equipment did not have a sufficient connection with the employment relationship to form the basis for a dismissal.

    The commissioner stated that an employer has no right to control the personal lives of employees to that extent and the HR Manager’s private comments did not justify her sacking when all the circumstances were considered. The employer’s discovery that an employee has a low opinion of them may damage their relationship, but there would have to be some evidence that the employee’s opinion had a damaging effect on the workplace, other employees or the business.

    In this case, the HR manager had an impeccable 18 year employment record with the dealership and her comments were not made on a Facebook wall that was accessible to friends of either party, or as a tweet that was publicly accessible. It was clearly intended to be part of a private conversation between the two women.

    The commissioner felt that a warning would have been a reasonable response in the circumstances and awarded the HR Managers six months’ salary in compensation. Reinstatement was not possible because the necessary trust and confidence between employer and employee had broken down.

    If you would like to learn more about how to prevent discrimination and harassment using social media, come to our seminar The challenge of social media.

    10.10 Wilkinson-Reed v Launtoy Pty Ltd T/A Launceston Toyota [2014] FWC 644 (24 January 2014)

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    Board training adapts to far-west industry

    The Anti-Discrimination Board’s Senior Workplace Relations Consultants travel far and wide to promote awareness about rights and responsibilities under anti-discrimination law.

    The Board’s Margaret White recently travelled to Nyngan in north-western NSW to provide training at the Tritton Copper Mine, owned by Straits Resources. The mine is the major employer in the outback region.

    After a lengthy journey involving a flight then a hired car, Margaret led training sessions for the entire management team at the mine. She also trained a group of Contact Officers, staff members who would be able to give information about the company’s grievance handling system to fellow employees.

    ‘At the Board we adapt our training to suit each different industry, so the information is easy for people to apply,’ Margaret said. ‘We’ll include legal cases that are relevant to that industry, plus examples and role plays that could easily occur in real life. That promotes a more in–depth understanding – and the better the understanding, the less likely it is that problems will arise.’

    According to Margaret, the fly-in-fly-out nature of mining employment raises particular issues in terms of anti-discrimination law. “Because a lot of the accommodation is provided by the employer, it blurs the definition of what is work-related and what isn’t. For example, you may be sharing a room with someone who is bullying you because of your race, and it could become the employer’s responsibility even though it is occurring after hours.’

    ‘Another issue is carer’s responsibilities discrimination. If your partner is sick and the children need to be picked up after school, and they live on the other side of the country, it’s not just a matter of going home early or taking a day off – you might be gone for days on end. So that may affect what it is reasonable to expect of the employer.’

    ‘It’s great that Straits Resources are making sure their staff are well informed about their rights and responsibilities, and the particular issues that may arise in their situation,’ Margaret said. ‘It is an interesting industry to work with, and I hope that other companies will follow Straits' example.'

    Photo: Margaret White (centre) with Tritton's Human Resources Manager Cameron Knight and HR Adviser Melissa Bain.

    What was the most common type of complaint in 2012-13?

    image of a man filling in a formDisability discrimination remains most common type of complaint According to the Anti-Discrimination Board’s annual report for 2012-13 released in November 2013, disability discrimination was the most common ground of complaint for the fifth year in a row (26% of total complaints). It was the most common type of complaint in most of the areas we cover, but particularly in employment and in goods and services.

    Other types of complaints such as race and age discrimination have gone down as a proportion of the total as workplaces and service providers become more aware of the need to prevent them, but disability discrimination remains a complex problem to address.

    However, race discrimination remains the second most common type of complaint (19%), followed by victimisation (11%), sexual harassment (9%) and sex discrimination (including pregnancy and breastfeeding) (8%).

    Victimisation occurs when a person is treated unfairly because they have made a complaint, whether within their organisation or with an external agency such as the Board. The fact that this constitutes a relatively high proportion of our complaints suggests that there is significant room for improvement in awareness about how to deal with complaints and procedures for handling them.

    Employment-related complaints continued to be the single largest area of complaint (53.5%). More than half of these complaints related to a detrimental work environment or harassment in the workplace. Nearly a third of all workplace complaints involved a state or local government entity. The provision of goods and services was the second largest area of complaint (24.7%).

    21% of complaints finalised in 2014 were resolved by negotiation, or during or after a conciliation conference. 15.3% were referred to the Administrative Decisions Tribunal, as they were not conciliable.

    The President referred one complaint of serious homosexual vilification to the Attorney-General for consideration for prosecution as an offence. 34% of finalised complaints were declined, and 10% of these were referred to the Administrative Decisions Tribunal. Complaints may be declined if they lack substance, are misconceived or are not covered by the Anti-Discrimination Act.

    More information about our work in 2012-13...

     

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    ADB President reappointed

    The President of the Anti-Discrimination Board, Dr Stepan Kerkyasharian AO, has been reappointed for the next two years.

    Dr Kerkyasharian was previously also the Chair of the Community Relations Commission of NSW, and resigned from the Commission in 2014. He had held that position since 1989 through the Commission and its predecessor, the Ethnic Affairs Commission, and was previously the foundation head of SBS Radio. He has been lauded many times for his crucial role in fostering community harmony in NSW.

    Dr Kerkyasharian was appointed as President of the Board in 2003. He continues to lead the staff and work with current statutory Board members Peter Wertheim AM, Dr Eman Sharobeem and William Won-Hong Seung to provide the community of NSW with direction, education and support in matters of discrimination.

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    Board active at Yabun festival 

    The Yabun festival, held on January 26 at Victoria Park, is the largest single day Aboriginal and Torres Strait Islander festival in Australia and draws between 10,000 and 15,000 people. The theme of this year’s festival was “Survive”.

    Presented by Koori Radio 93.7FM and organised by the Gadigal Information Service, Yabun is an important Indigenous music event which showcases the huge wealth of creative talent in the community.

    This year’s performers included Bart Willoughby Band, Emma Donovan and the Puttbacks, Kutcha Edwards, Leah Flanagan, The Renegades of Munk and King Brown.

    Yabun also includes a ‘Speakout tent” with speakers addressing contemporary issues, a movie night and a wide range of stalls providing information to the community, as well as others selling delicious food.

    The Board’s Aboriginal and Torres Strait Islander Outreach program shared a stall with NSW Fair Trading on the day. This is a great opportunity for the Board’s staff to answer questions, distribute information and network with other agencies.

    Questions received by the team during the day related mainly to race and disability discrimination in service provision. Many other people took factsheets, brochures and promotional materials and in some cases said they would call the Board’s Enquiry Service.

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    New Aboriginal Education Officer runs youth workshops

    For Noni Ross, working at the Anti-Discrimination Board is an opportunity to assist the Aboriginal and Torres Strait Islander community to address their ongoing experience of discrimination in a meaningful way.

    A Murri woman whose family is originally from Queensland, Noni recently joined the Board’s Aboriginal and Torres Strait Islander Outreach team as Education Officer. She was previously a Customer Service Officer at NSW Fair Trading, informing the community about consumer rights.

    'Discrimination is still a big issue in the Aboriginal community, and working at the Board gives me the opportunity to do something different, and help people to resolve discrimination problems actively,’ she said.

    As well as running stalls at community events and answering phone enquiries, Noni recently spoke at two workshops for Aboriginal young people at the Royal National Park.

    The workshops were part of the Young Mob Leadership program, which is run by World Vision. The program aims to enable urban Indigenous youth to gain skills in public speaking and leadership, improve confidence and self-esteem and learn more about their Indigenous culture.

    ‘The kids had a lot to say,’ Noni said. ‘They experience a lot of stereotyping of Aboriginal people and there were interesting discussions about how to react to that – what are the different responses if you react to discrimination with anger versus trying to be more educative, and which is most effective.’

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    Complaints resolved through conciliation

    Age discrimination in employment

    A young man was employed by a major store as a casual shelf packer, but when he turned 18 and was entitled to the adult pay rate, he was offered fewer shifts. He complained about this to the store’s local management and was told that this was because fewer shifts were available due to a drop-off in demand. However he said that other employees were still being given work.

    The man made a complaint of age discrimination to the Board, after which he was given no shifts for several months. He said that when he rang the store to ask about work, the person he spoke to said they had been told not to speak to him or give him any shifts because he had made a complaint.

    The store management denied that this had occurred, and said that they did offer the man work at another location. He said he didn’t want this as it was less convenient and he knew there was work at his previous location.

    A conciliation conference was held at which the store representatives had a positive approach. After the conciliation an agreement was reached that the store would pay the man $3,500 for economic and non-economic loss. The man continued to work at the store, and the local manager with whom he had his initial difficulties was moved to another store.

    Carer’s responsibilities discrimination

      A woman had worked as a systems manager for a university for some years. She took time off to have her first baby and after her maternity leave ended she asked to return to work part time for three days a week.

    Her request for part time work was refused, so she suggested a short-term job-share arrangement until she could return full time. She pointed out that there had been part-time or job-share arrangements in the past for similar roles, but this request was also refused.

    She was then offered a project-based role which she could do part-time. She didn't want this because she thought it was more junior and had less prestige as it was less challenging and narrower in focus. Although the pay was the same, she would have been answerable to someone she had supervised before her maternity leave.

    The woman lodged a complaint of carer’s responsibilities discrimination. At conciliation, she explained that she was really passionate about her job and wanted to get back to work full-time, but couldn't get child care for the entire week. She could only get three days and was on a waiting list for the other two days.

    The university representatives argued that it was an inherent requirement of her position to work full-time. They were concerned there wouldn’t be a supervisor available if there was a system crash.

    The complainant said she thought she could get a fourth day of child care fairly soon and could work from home on the fifth day or be on call. She pointed out that the person filling the role during her maternity leave had worked on another project for three weeks without having someone cover the role, so it clearly could function within someone being available all the time.

    The university agreed to consider her role on the basis of four days a week. This was accepted and it was agreed that the complainant would return for three days a week until she got child care for the fourth day. The university also offered to supply additional technology to assist her to work from home and be on call.

    Disability discrimination in registered clubs

    A man who used a wheelchair could access the downstairs bar of his local club but not the restaurant, which was upstairs. He lived in a rural area and the club was one of the only social facilities available to him.

    He asked the club to provide access to the upstairs area. The management investigated the option of a stair lift, but the stairs were not wide enough to do this and still be safe for other people using the stairs. The manager said that it was too expensive to install a separate lift, and the man’s mother made a complaint to the Board on his behalf.

    A new manager then arrived at the club and when the Board contacted him he was more receptive to the idea of installing a lift. This would provide benefits for other patrons and staff as well as the complainant, including people using mobility devices, people with prams and people moving large or heavy items.

    After investigating the expense and the engineering aspects, the club submitted a development application and this was eventually approved. The complaint was resolved when it was agreed that the lift would be fully operational by a certain date.

    Disability discrimination in service provision

    An elderly woman lodged a complaint against a local council because she could not access their new swimming pool complex using her mobility scooter. She couldn't use the front entrance and when she came in using the side entrance, the staff would comment on her being in the way and tell her she shouldn’t have her scooter in there. She therefore felt discouraged from using the pool.

    The Board wrote to the council asking about their policies and training. The council replied that they were not discouraging the woman, and they had just built the pool to be accessible and were very keen for residents to use it, especially people with mobility problems.

    The council’s general manager apologised if the woman felt excluded and emphasised that she was very welcome. They explained that the council had a policy on disability access to its services, and council staff had recently undergone disability awareness training.

    The woman was happy with this response as she considered it was meaningful and acknowledged her concerns. She advised that she considered the complaint resolved as she could now access the pool complex without feeling out of place or stared at.

    Race discrimination in employment

    An Aboriginal man who worked in a government service alleged that he had been racially abused by a colleague, and this was corroborated by a witness. He had previously lodged an internal complaint about disputes with this man but there had been no result. He wanted redress in the form of an apology and cultural awareness training.

    The colleague denied that he had abused the man. He claimed that he was also Aboriginal and therefore couldn’t be racist, which offended the complainant further.

    There was some debate about the date on which the alleged incident had occurred, as the employer said it did not seem from their records that the complainant, the respondent and the witness were rostered on the same shift at the time of the alleged incident. The employer suggested that the complainant had made up the complaint in order to harass the respondent.

    However, the employer approached the locally held conciliation conference with a positive attitude. They acknowledged the complainant’s distress and admitted that there were factions in the organisation which needed to be addressed. The complainant also approached the conference positively and felt his concerns had been listened to.

    The employer agreed to cultural awareness training but did not feel that an apology would be possible or meaningful, given previous incidents with this respondent. The senior representative at the conference also invited the complainant to contact him at any time if he had any further problems. This was accepted by the complainant.

    Race discrimination in employment

    A woman who did project work for a government department was not part of a group that was being promoted under an affirmative action program. She alleged that she had been told to undertake mandatory training which would be free for people in the group but not for people who weren’t in the group.

    She said that later she was asked to assist with the work of people who had been promoted above her but were less experienced than she was. She felt that her work was not being valued, and this was supported by some staff who were members of the group being promoted. At this point the complainant resigned from her position and lodged a complaint of race discrimination.

    The department denied that the course was compulsory, and that the woman would have to pay for it. Initial consideration of the issues did not bring about resolution, but the issue was ultimately resolved through discussion at a conciliation conference.

    The respondent acknowledged the complainant's concerns and showed recognition of the frustrations she experienced, and the complainant was satisfied by this. The complaint was resolved when the department agreed to pay the woman $5,000 in compensation.

    Race discrimination in employment

    A Jewish man was working casually for a cleaning company in a position which required him to work at different locations. He told his employer he was unable to work beyond a certain distance from home on Fridays as he had to get home by sunset for ethno-religious reasons.

    The company said they could offer the man a different job at another location, but then the company was restructured and he said he then felt he had to quit as he felt he had been blacklisted. He said he then applied for another job with the same company and he was told he had been marked 'review suitability if reapplies'.

    The man made a complaint of race discrimination, and the complaint was settled on a minor amount of financial compensation and the removal of the “review suitability” on his file.

    Transgender discrimination in employment

    A transgender woman had worked as a nurse for twenty years, both before, during and after her transition from male to female.

    She alleged that she was subjected to sexual harassment at work while identifying as male, including negative comments, touching, inappropriate calls and messages and requests for sex, and no action was taken when she complained to management.

    The woman went on leave as she was unfit for work because of the stress caused by this behaviour and an assault that occurred outside the workplace. When she returned to work she worked in a different unit, but by then she had transitioned to female and her new colleagues refused to acknowledge her new gender and refused to call by her new name.

    The woman lodged complaints of sexual harassment and transgender discrimination. She alleged that her employer failed to respond to the complaints she made, failed to provide training for staff, and was vicariously responsible for the harassment she experienced.

    At conciliation, the woman was assisted by a representative from her union and explained how much she had been hurt by the actions of staff and how much they could benefit from more training. Her employer responded positively and a settlement was reached.

    The settlement involved: compensation of $5,000 as an ex gratia payment to acknowledge her distress, hurt and humiliation; a written apology; and training for all employees and managers in the woman’s section to on anti-discrimination legislation, practices and guidelines, with a specific focus on gender diversity. The woman would also be given the opportunity to review the training package to confirm that it covered all the important issues. The woman also resigned from her position.

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