Grievances must be taken seriously
The Sussan Corporation recently learned a costly lesson about grievance handling when the Queensland Supreme Court awarded significant damages to an ex-employee who had complained of bullying.
An assistant manager who had just returned from maternity leave alleged that she was bullied by a store manager appointed in her absence. Her complaints included being left out of management matters, being spoken to aggressively and being subjected to unwarranted criticism.
After only three days back at work, the woman contacted the store’s state business manager to raise her concerns, in a state of some distress. The business manager suggested that she should ‘put some lippy on and go home to bub’.
The business manager said she would speak to the store manager and did so, telling her about the allegations and asking her to be ‘more mindful’ in dealing with the complainant. The store manager then confronted the complainant about the allegations and the situation worsened.
The complainant informed the state Business Manager that matters had deteriorated and was told to ‘work it out for herself’. Over the next few days, the complainant’s mental state declined to the point where her doctor certified that she was unable to return to work. Her decline was so severe that she was unable to care for her baby, and her husband and mother had to care for both of them.
The complainant sued Sussan for negligence and breach of contract. The company’s bullying and harassment policy states that complaints will be taken seriously, investigated and treated confidentially.
Sussan claimed that the complainant’s psychiatric injury was unforeseeable and that she had personality traits that made her more prone to psychiatric injury. However the court found that Sussan should have been aware that psychiatric injury was possible if it did not handle the woman’s complaint properly.
The court said that the complainant did have some pre-existing personality traits which may have made her more vulnerable to psychiatric injury, but these traits did not cause the injury. It therefore found that Sussan had breached its duty of care and caused the woman’s injury.
In its decision, the court said that the state business manager had failed to follow Sussan’s bullying and harassment policy or otherwise take appropriate action about the complaint. Rather, her ‘patronising advice’ and manner of dealing with the complaint indicated that she did not take it seriously.
The court also found that the store manager’s behaviour had been excessive and unreasonable. It said that the company knew she was inexperienced and should have predicted that her ability might be tested when a longstanding assistant manager returned. Sussan was found responsible for the behaviour of both the managers.
The complainant was awarded $304,000 in damages, including economic loss. The lessons to be learned are simple and straightforward:
take all complaints seriously;
deal with all complaints scrupulously in accordance with your company’s policies and procedures.
Keegan v Sussan Corporation (Aust) Pty Ltd  QSC 64
Based in one of Australia’s most multicultural areas, Auburn Council faces unique challenges as an employer and service provider. The Council’s motto is "many cultures, one community", and this is reflected in a diverse workforce and an even more diverse client base.
The Council recently asked one of the Board’s Senior Workplace Relations Consultants, Rhonda Stewart-Crisanti, to provide training for all its staff on preventing discrimination, harassment and bullying.
‘We have a diverse workforce with staff who have been with the council for a long time, and new people coming in, from many different backgrounds,’ said Auburn’s Human Resources Manager, Peter Tzoukos. We wanted to improve understanding of EEO and about what constitutes bullying and harassment and the many forms it can take.’
‘We wanted our employees to understand what can and can’t be said, and to treat people as they would like to be treated. This is reinforced by our policies and procedures as well.’
According to Rhonda, the main challenge in such a multicultural context is enabling participants to fully understand and respect cultural differences while avoiding stereotyping. This is particularly important when there are physical signifiers of difference such as wearing hijabs or turbans.
‘It’s about understanding where people are coming from and treating each client and co-worker as an individual and with respect, whatever their background,’ she said. The Council also places a priority on acknowledging the diversity of their workforce, making accommodations for people fasting for Ramadan, providing private space for prayer and including halal food options at staff events.
With just 50 out of 300 staff left to receive the training, Marie says that the response has been very positive. ‘I was very impressed with Rhonda’s ability to develop rapport with the guys at the depot,’ she said. ‘They threw her some curly questions, but she handled it really well. She was able to have a laugh with them but still get the serious message across.’
‘It’s great working with Auburn to raise awareness around rights and responsibilities in the workplace,’ Rhonda said. ‘I hope that other Councils take the same proactive approach to developing an inclusive workplace culture. It’s such a good investment and reduces the potential for future problems and complaints.’
The Board has a great deal of experience in providing training for local councils and in addressing the particular types of issues faced by local government. We also have a factsheet and guidelines specifically for council members and employees.
More information about our training service
More information about our guidelines for local government
Photo: Rhonda Stewart-Crisanti (centre, holding poster) with training participants from Auburn Council and the Council’s Manager Human Resources, Peter Tzoukos (second row far left).
During a recent trip to north-western NSW as part of the Department of Justice’s Law Week activities, the Board’s Aboriginal and Torres Strait Islander Outreach team were encouraged by the achievements of a new literacy program in Bourke.
A large group from the Department visited Bourke and Brewarrina in May, with the goal of improving access to justice for people in remote communities. They ran information stalls in parks in both towns, assisting with wills and obtaining birth certificates and giving advice about family law, discrimination and dealing with fines.
Three staff from the Board made the journey, continuing the outreach work begun on their previous visit to Bourke in 2013. This included liaising with local businesses and community members, as well as holding several conciliation conferences to resolve discrimination complaints.
The literacy scheme has been very successful in improving literacy among Aboriginal people, with consequent benefits for the community. It is based on the Yo! Si Peudo! or Yes! I Can! mass literacy campaign model developed in Cuba, which has been adopted in over 15 countries.
The scheme in Bourke was set up by educator Jack Beetson, who was previously Executive Director of Tranby Aboriginal College. It has three stages: promotional and community education; literacy lessons (which students watch on DVD under supervision from local facilitators); and post-literacy activities to reinforce and extend the skills gained.
‘Our aim is to provide pathways into further training, social enterprise and improved participation in family and community development activities,’ said Coordinator Lillian Lucas. ‘In 12 months we have had over 70 adult students graduate, with expressions of interest for further intake’.
‘Many of the students have said that they have gained a lot of confidence and have a better understanding of the way things are and how to deal with everyday issues. I’ve seen programs come and go but none as successful as this one.’
Chelsea Dennis is one young student who has benefited from the program. ‘I looked to the program to help with my schooling and enable me to do things for myself and make more of my life,’ she said. ‘Doing the course has improved my confidence and now I want to set a good example and encourage others to do it as well.’
‘We were very pleased to hear such a good news story in an area where there have been some difficult discrimination issues,’ said the Board’s Aboriginal and Torres Strait Islander Team Leader, Felicity Huntington.
‘Just being able to read the dosage on a bottle of medicine is a big step forward in terms of health outcomes. In the longer term there are also big advantages in keeping kids at school and improving people’s confidence to gain employment and access services such as the Anti-Discrimination Board.’
Photo: (L-R) Lilian Lucas, Jack Beetson and Chelsea Dennis from the Yes I Can! literacy program in Bourke
Managing poor performance is an ongoing challenge for managers and supervisors and requires very careful handling to avoid complaints of discrimination, harassment and bullying.
The issue can be particularly complex in relation to an employee who has a mental illness. This is covered as a disability under anti-discrimination law and the Fair Work Act 2009, and any poor performance resulting from the mental illness should be managed in the same way as any other disability.
These matters were highlighted in a recent case decided under the Fair Work Act. The Victorian Office of Public Prosecutions was ordered to reinstate a solicitor whom they had dismissed for poor performance and to pay him $93,750 plus a penalty of $10,000. How could this happen?
The complainant was employed by the OPP in 2007. He was initially assessed as ‘performing beyond expectations’ in his yearly appraisals, but his performance began to decline in 2010 after he had surgery for a broken leg and developed deep vein thrombosis.
He developed major time-keeping problems due to multiple medical appointments. By 2012 he was still not performing well in terms of time keeping, attendance and case management. During discussions about this he disclosed to his employer that he had been diagnosed with depression.
After an incident in which he left work without explanation to support a friend who was having a baby, he was suspended and told that he was incapable of performing the role of solicitor.
The complainant was then required to obtain a detailed medical report on his condition and its effect on his ability to do his job. He provided a report from his doctor of 25 years, which said that his condition was improving and recommended that he return to work after a short period of leave.
However the OPP asked for an independent specialist’s report which the solicitor did not supply, on the advice of his union. He was subsequently dismissed.
In Court, the OPP argued that the complainant had been dismissed for misconduct and not because of his illness. However the Court found that the dismissal constituted an adverse action under the Fair Work Act. It said that his illness ‘was quite clearly a part of the reason why he was dismissed. It was his illness on any view that led him to do the things that he did that caused him to be dismissed.’
The Court also said that the OPP should have understood the implications of the illness. ‘I do not accept the assertions that [the complainant’s supervisors] simply had no understanding of what depression is and what effects it may have on people. It is inconsistent with their professional experience and education. It also ignores the plain language of [the doctor]’s report.’
To avoid an allegation of disability discrimination or adverse action when dealing with an employee whose poor performance is a result of a mental illness, that person’s incapacity to perform should be managed by seeking reasonable accommodations that would enable them to continue in their job.
In this case, the brief period of leave recommended by the complainant’s doctor would almost certainly be regarded as a reasonable accommodation of his disability. If the problems continued, they should have been managed in accordance with the provisions of work health and safety legislation and the Fair Work Act.
Grant v State of Victoria (The Office of Public Prosecutions)  FCCA 17 (23 January 2014); Grant v State of Victoria (The Office of Public Prosecutions) (No 2) FCCA 991 (22 May 2014)
The President of the Anti-Discrimination Board of NSW, Stepan Kerkyasharian, has expressed concern that the changeover to PIN-only credit card transactions on August 1 may affect people with certain kinds of disabilities.
"The change is likely to cause problems for people who have difficulty using or remembering numbers," Mr Kerkyasharian said. "This may include people with dyscalculia, or number dyslexia, as well as some people with dementia, an intellectual disability or certain types of brain injuries."
"Another aspect is the manual dexterity required to key in a pin number. There are many reasons why a person may have limited hand function and find it very difficult to use the relatively small keypad on an EFTPOS machine. Arthritis, cerebral palsy and quadriplegia are three that spring to mind.
"This could create additional stress for a person with a disability in situations that they may already find difficult – for example because the environment is confusing, or because of access problems. If no alternative is available, some people might have to revert to using cash which could create further problems."
Mr Kerkyasharian explained that under the NSW Anti-Discrimination Act, discrimination can occur if there is a requirement that is the same for everyone but it affects certain people more adversely than others. "That is exactly what you have here," he said.
Mr Kerkyasharian has written to the major banks, card providers, the Financial Ombudsman and the Australian Competition and Consumer Commission, expressing his concern and urging them to continue providing a signature option for those who genuinely need it. He recently met with a senior representative of PINwise, which is implementing the change.
‘I’m now satisfied that processes have been put in place so that people with a disability will not be disadvantaged,’ he said. ‘If you are unable to use a PIN, I suggest that you contact your bank or other credit card provider. If you have any difficulties, contact the Anti-Discrimination Board for assistance.’
The Anti-Discrimination Board has produced a new poster which can be used to show that your workplace or service is breastfeeding-friendly.
The NSW Anti-Discrimination Act specifically states that it is unlawful to discriminate against women who are breastfeeding. This means women are generally allowed to breastfeed anywhere they choose. They can’t be told not to breastfeed in a particular place, or that they must do it somewhere else.
Lack of awareness about the law was highlighted in a recent report about an incident at The Children’s Hospital at Westmead. According to
The Daily Telegraph, a woman was told by staff at the hospital’s childcare centre that she couldn’t breastfeed her baby in the lunch area ‘as there were children present’, and she was forced to go into a crowded storeroom. The hospital said later that they supported breastfeeding mothers and regretted the ‘misunderstanding’.
While media reports often focus on breastfeeding discrimination by service providers such as restaurants, in fact it occurs most commonly at work. For example, women may not be provided with suitable facilities for breastfeeding or expressing milk, or they may not be allowed to organise their breaks so they can breastfeed, or they may even be told that they can’t return to work until their baby is weaned.
To avoid discrimination complaints, employers and service providers need to remind their employees about the rights of women who are breastfeeding. Displaying the Board’s new poster is a great way of making sure the message gets across, and showing your support for breastfeeding mothers.
How to purchase the poster
Disability discrimination in service provision
The complainant was a man who had post traumatic stress disorder following service in the Australian Defence Force. He has an assistance dog which he said helped to alleviate the effects of the disability, particularly with managing anxiety.
He made a complaint of disability discrimination after he tried to take the dog into a hotel and was stopped by security guards. Although he explained that the dog was not a pet but a trained assistance animal, and wore a jacket indicating this, he was not allowed to enter with the dog. His friends were also barred from entering because they were supporting him.
When the Board contacted the hotel, they were positive about addressing the complaint. Since the complaint had been lodged they had dismissed the existing security guards and hired new ones. They agreed to ensure that all staff and contractors working at the hotel would receive training on discrimination law, with particular focus on assistance animals.
The hotel also agreed to make a financial contribution of $5,500 to two charities that support the training of assistance animals. In addition, they held a fundraising day to support these charities and invited the complainant to speak about the charities’ work.
An older woman lodged a complaint of disability discrimination against the owners’ corporation of her retirement village. She was very concerned that the use of mobility scooters in the complex was unsafe and she was at risk of injury as she was frail and could not move quickly out of the way.
The problems included driving the scooters too fast, not taking enough care when coming out of the lifts, and parking without due attention to the safe passage of other residents. Also she was concerned that the scooters did not have third party insurance and if someone was injured there would be no funds to pay for their treatment.
The complainant had tried to raise the issue with the executive committee at the village but had not received a satisfactory response. Initially when she contacted the Board she wanted all scooters banned from the complex, but she accepted that this was unrealistic in view of the age of the residents.
The Board held a conciliation conference at which it was agreed that the issue of insurance was important and would be raised at the next executive committee meeting. It was also accepted that protocols should be introduced to encourage residents to use scooters safely, for example reminders in the welcome brochure and the monthly magazine to drive at walking pace and be careful where the scooter is parked.
A man made a complaint of homosexual vilification after he was abused by a group of three men in the street. He was sitting on the steps of a residential building after dinner with friends, in a well-lit public area with considerable foot traffic, when the respondents came up to him shouting "faggot! faggot!" and "let’s get him".
Two of the respondents began questioning the complainant in an abusive manner, and while this was going on he realised that the third was urinating on him from behind. The respondents then walked away.
The man was shocked and frightened by the incident, particularly as the respondents were much taller than him, and he was concerned that they would attack other gay men. Although they were strangers, he was able to identify them for the purposes of making a complaint.
The complaint against the man who had urinated was settled separately, and another was withdrawn. The complaint against the third man proceeded to conciliation. The respondent denied using the word "faggot" or being homophobic, and disputed some aspects of the complainant’s story.
However the respondent approached the conciliation positively and said he wanted to resolve the complaint. He accepted that the complainant may have felt intimidated due to his larger size, and said he was horrified that his friend had urinated (although he claimed that this was not actually done on the complainant).
The complaint was resolved by an agreement that the respondent would pay the complainant $1,000 and supply a private written apology.
A woman lodged a complaint of disability discrimination against her insurance company after she was forced to leave a cruise ship with her adult son, who had a physical disability.
The woman took her son on the Mediterranean cruise after first taking him on a shorter cruise to make sure that he could manage. The two flew straight from Australia and then travelled to the embarkation port, so they were both very tired by the time they boarded the ship.
Once they were on board, there were lengthy delays during which they had to stand on the deck. The man began to feel faint and needed to sit down, but he was told that he had to stand or sit down on the deck. As he wasn’t able to get down to sit on the ground, he walked over to a step and sat there.
The woman alleged that the staff then shouted at the man and tried to haul him to his feet. He became distressed, and an altercation ensued which resulted in him being ordered off the ship. As the cruise had been pre-paid, they didn’t have sufficient money to cover the additional accommodation costs incurred after leaving the ship, and they were stuck in the port for some time waiting for more money from Australia.
When the woman made a claim on her travel insurance for the additional expense the insurance company refused to pay. They claimed that it was the complainants’ fault that they were ejected from the ship, and they had not disclosed the man’s disability when purchasing the insurance. The woman said that the problem had not arisen from the disability but from jet-lag and the poor arrangements on the ship.
At conciliation, the company recognised that the initial insurance claim may have been misunderstood. It was agreed that complaint would be settled by financial compensation.
A woman who was working on contract as a doctor for a health service lodged a complaint of race discrimination. She felt that a supervisor had harassed and ridiculed her and questioned her professionalism in front of junior colleagues. She believed that she was treated differently to other employees because she is a Jordanian Muslim and wears a hijab (headscarf).
The complainant had lodged an internal complaint with her employer but this had not been finalised by the time the Board arranged a conciliation conference. The employer approached the conciliation with a positive attitude and was keen to resolve the issue. They said that a concrete complaint may provide them with the opportunity to address bullying more actively.
The employer agreed to fully investigate the incident and if appropriate, reinforce the organisation’s code of conduct and provide refresher training on preventing bullying and harassment. The complainant was happy with this outcome and hoped to return to the service for a further contract.
A man contacted the Board when he was asked to provide proof of his proficiency in English to enrol in an accounting course at an educational institution. He had arrived in Australia when he was 11 and had completed other courses at TAFE and university in Australia.
The man alleged that the institution discriminated against him on the basis of his race by assuming because of his name that he was from a non-English speaking background and requiring him to provide proof of his proficiency in English rather than considering his education in Australia.
The Board wrote to the institution seeking their response to the complaint. They responded that the staff member had handled the man’s application in accordance with the relevant policy, but they realised from this incident that the policy was inadequate.
The institution apologised to the complainant. They undertook to amend their policy on English requirements for admission and review all other their policies where English proficiency requirements are specified.
A woman who worked in IT support for a large company made a complaint of sexual harassment. She was the only woman in her section and she said that her colleagues made comments with sexual innuendo which she found offensive.
She had complained to her manager but the behaviour recurred. She was moved to another area, which she said she did not want. She said that she was also discriminated against on the basis of carer’s responsibilities as she was not allowed to work from home while other employees were.
She also alleged that she was also subjected to sex discrimination when she sent a text to the female human resources manager about having to go home early due to menstrual problems, and received a text back that implied that her explanation was unreasonable.
The employer said that they had spoken to the people involved after the first incident and the woman had asked to be moved to another area if she believed the harassment was continuing.
They denied they had discriminated against her and said that there were problems with her performance, including complaints from clients that they would not work with her. They said they believed she was stressed about the performance issues and she was regularly late, which her colleagues resented. They said she had worked at home more frequently than any other staff member.
The complainant said that she did not feel should continue to work for the company. The complaint was therefore resolved by an agreement that the employer would pay her three months pay in exchange for her resignation.
An 18-year-old woman made a complaint of pregnancy discrimination when she encountered difficulties trying to return to her apprenticeship with a major retailer after having a baby.
The woman couldn’t pin down her employer about the details of returning to her apprenticeship and was told informally that it had been given away. The matter was urgent as there was only a limited window for her to enrol back in TAFE and she could only do so if her employer advised TAFE that she was their apprentice.
When the Board investigated the complaint, we were able to contact a human resources officer for the area who was keen to resolve the issue. It transpired that several of the managers in the store where the young woman had been working had been on leave and no-one had been fully informed about her situation.
The complaint was resolved when it was arranged that the young woman’s enrolment at TAFE would be immediately confirmed and she would return to work part time, spending two days per week at work and one day at TAFE.
A woman who worked in a remote office of a large company lodged a complaint of pregnancy discrimination when she felt that her co-worker in the office began to treat her differently after he found out that she was pregnant.
The woman felt very uncomfortable as she thought her colleague wasn’t speaking to her and appeared to be changing her time sheets. The Board felt that it was necessary to resolve the issue as soon as possible, but it would have been difficult to arrange a conciliation conference quickly due to the location of the parties.
When we rang the company’s CEO (who was based in another state), he said that he was going to that office the following week and could address the situation then if the complainant agreed. The Board contacted the complainant who agreed that this would be acceptable. We also made some suggestions to the CEO about the best way to approach the situation.
The CEO discussed the matter with the complainant and her colleague. The colleague said that his behaviour related to other issues unrelated to the complainant or her pregnancy. The CEO emphasised that the colleague was not the woman’s supervisor and he was not responsible for the time sheets. The woman was satisfied by this discussion and the complaint was resolved.
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