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March 2015

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    Large damages awarded for harassment

    The NSW District Court has awarded $733,723 in damages after sexual harassment left a woman with ongoing psychological problems. The plaintiff began working for an insurance broker in 2008 and was almost immediately subject to repeated physical contact and sexually related comments from a director of the company. She made it clear that she did not welcome this behaviour and also complained to another director, who was the harasser’s wife.

    After the plaintiff took a brief period of sick leave because of stress, the conduct continued and became increasingly offensive to her. She was eventually certified as being unfit for work and left her employment. She alleged that the harasser visited her at her home uninvited on the day she left and later made a death threat to her.

    The defendant denied the claims and alleged that the plaintiff was lying. However the Court found that her evidence was "entirely convincing…and there was no cause for doubting her truthfulness". The defendant, on the other hand, was found to be "an unsatisfactory and unconvincing witness".

    The Court held that the employer owed the woman a duty of care to protect her from sexual harassment. As she had made it clear that the conduct was unwelcome, and both company directors were aware that the situation was causing her distress, they could reasonably see that she was being exposed to the risk of psychological injury.

    The Court said that the company should have arranged for the defendant to receive counselling to help him to understand that his behaviour was wrong and should cease. At the very least, there should have been a conciliation between the parties with proper support for the plaintiff. The Court found that the woman’s psychiatric illness was a direct result of the systematic sexual harassment. It said the woman had not contributed to the situation and had done all she could to protect herself. It awarded her $733,723 in damages, plus costs. This included amounts for past and future economic loss and for superannuation.

    Trolan v WD Gelle Insurance and Finance Brokers Pty Ltd [2014] NSWDC 185

    Rights of employees on long-term sick leave

    How long do you have to keep someone on the books when they have been on long- term sick leave, paid or unpaid? A recent case in the Federal Court illustrates the complexities of the issue.

    Under s. 352 of the Fair Work Act, 2009 (Cth), an employer must not dismiss an employee who is temporarily absent from work due to illness or injury, as long as they have a medical certificate, statutory declaration or other evidence that would satisfy a reasonable person of their inability to work.

    However, if they have been absent for more than three months in a 12 month period and they are not on paid leave or workers compensation, the employer can consider dismissal - even if they have medical certificates.

    However, the employer still has to take into account s.351 of the Fair Work Act, which is a discrimination provision prohibiting adverse action against someone because of a physical or mental disability.

    Under anti-discrimination laws, a person who is sick or injured is entitled to reasonable adjustments or reasonable services and facilities to enable them to perform the inherent requirements of their job. In an adjustment, service or facility it imposes an unjustifiable hardship on the employer, it is not regarded as reasonable.

    In the Federal Court case, an employee with cancer had been absent for ten months. He kept his employer informed of his progress throughout this time and then notified them that he would be returning to work in about four weeks. By that time he had used up all his paid leave. His employer responded with a termination letter.

    The employer relied on s. 352 as a defence of their actions, whereas the employee claimed his dismissal was a discrimination-based adverse action under s. 351. The judge sided with the employee when he said: "A dismissal may be authorised due to the period of absence but it may still constitute an unlawful dismissal under Commonwealth or state anti-discrimination legislation."

    In Summary: you can’t dismiss someone just because he or she is sick or injured. You can’t you dismiss them while they still have paid leave entitlements or they are on workers compensation. You can dismiss them if they have run out of paid leave, have taken more than three months sick leave in a twelve month period and are unable to fulfil the inherent requirements of their job with reasonable adjustments.

    The only way to be sure to meet this last requirement is to:

    • let them know that their continued employment is in doubt

    • discuss with them what reasonable adjustments, services or facilities might assist them to return to work

    • consider alternative employment options within the workplace if appropriate

    • obtain credible medical evidence as to the nature of their condition, any reasonable adjustments which might be needed and whether or not it is reasonably likely that they will be able to return to work safely

    • take into account the employee’s own views and any suggestions they might have, and

    • terminate them only when it is clear that they are not well enough to perform the inherent requirements of their job, even with reasonable adjustments, services or facilities.

    McGarva v Enghouse Australia Pty Ltd [2014] FCCA 1522 (15 July 2014)

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    Discrimination pitfalls in online recruitment

    Employers should beware of the potential for discrimination in online job application forms. Not only will you lose potential applicants, but you might find yourself the subject of a complaint. This occurred to Woolworths in a recent complaint to the Queensland Anti-Discrimination Commission.

    The complainant was applying for a job as a console operator and objected to the requirement to show his age and gender on the online form, and to up-load documentation to prove his entitlement to work in Australia.

    Woolworths conceded that the request for private information could be discriminatory. However they argued that the applicant’s date of birth was required because employees must be over 18 years of age in some positions and the Enterprise Agreement contained junior rates of pay.

    They claimed that gender was necessary because of Commonwealth laws requiring the collection of data on job applicants' gender. They also argued that they had an obligation not to employ anyone who was not entitled to work in Australia.

    The Civil and Administrative Tribunal rejected these arguments, saying that Woolworths did not have to collect this information at this early stage of the application process. It said the form could ask people to indicate whether they were over 18 where this was a specific job requirement, and ask them to nominate the basis of their entitlement to work in Australia. The rest of the information could have been collected at interview.

    Mr Willmott was awarded $5,000 for embarrassment, humiliation and loss of chance. Woolworths has since changed its online application form so that applicants no longer have to nominate their date of birth, there is a "no selection" option on gender and it is noted that right to work documentation will be required at interview.

    Willmott v Woolworths Ltd [2014] QCAT 601 

    Employers can be liable for "hate speech"

    In the light of current debate around freedom of speech, employers need to remember that they can be vicariously liable for the actions of employees expressing themselves too forcefully via workplace email and social media. A recent case in the Fair Work Commission demonstrates some of the pitfalls.

    An employee of construction, mining and services contractor Theiss sent an email to co-workers and others with the subject heading: "World War 3 – pass it on". The content was highly offensive to Muslims and possibly to anyone who opposed bigotry. It was potentially in breach of state and federal laws against racial and religious vilification as it was a "public act" capable of inciting serious hatred, ridicule or severe contempt of Muslims.

    The email was intercepted by the company’s information technology department before it went out. Theiss investigated immediately and sacked the employee on the same day. He then made a claim of unfair dismissal.

    The company said that the email was a serious breach of its code of conduct and diversity policy in which all employees were trained (although there was no specific evidence to show that this employee had been trained). He had also previously received an informal warning from a manager to "back off those Muslim emails".

    The FWC found that Theiss had a valid reason to dismiss him, as the informal warning should have made it clear that his behaviour was unacceptable even if he didn’t know he was in breach of company policy. The FWC said that the misconduct was "extremely serious" and potentially damaging to the company’s reputation.

    However, the Commission decided that terminating the man’s employment was harsh and unreasonable in the circumstances. This was partly because his work ethic and capability were not in question, he was 65 years of age and he would have reduced chances of getting another job.

    The Commission noted that he had received no formal warnings about his behaviour, which may have persuaded him to change his ways. Also the speed with which he was dismissed meant he had no time to consider the situation. Given time he may have accepted that he had done the wrong thing and apologised, but as it was he displayed no understanding of the impact and offensiveness of his behaviour and was unrepentant.

    Reinstatement was deemed inappropriate given that there was a valid reason for his dismissal, but the man was awarded $29,000, or 50% of the amount of compensation he might have received had he not been guilty of serious misconduct.

    To avoid a similar situation, employers must take all reasonable steps to ensure that all their employees understand what behaviour is unacceptable in the workplace. This should include:

    • Training all employees in the code of conduct and policies and running refresher training at regular intervals

    • Keeping accurate records of who has attended this training

    • If an employee’s behaviour contravenes the code of conduct or a policy, giving a formal warning which is more likely to be taken seriously.

    Anderson v Theiss Pty Ltd [2015] FWC FB 478 (30 January, 2015)

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    How contact officers can help

    Contact or fair treatment officers can play an important role in ensuring that workplaces remain safe, respectful and problem-free. As well as providing a first port of call in the grievance process, they can also help to identify potential problems so they can be addressed early on.

    "One of the main functions of contact or fair treatment officers is to provide information about rights and responsibilities regarding workplace discrimination, and support employees to access complaint mechanisms", said the Board’s Senior Workplace Relations Consultant Rhonda Stewart-Crisanti.

    Rhonda recently conducted training for Fair Treatment Officers (FTOs) at Northparkes Mines, a copper and gold mine northwest of Parkes, NSW. "This is one of the company’s measures to prevent harassment and bullying," she said. "There is a strong emphasis on compliance in the mining industry because the stakes are very high if safety of any kind is compromised."

    According to Stacey Kelly, Manager People at Northparkes, the company is committed to Zero Harm Operations. "Our people are our most important asset and ensuring their safety and wellbeing is paramount. We have a number of processes which are designed to create a supportive, open culture," she said.

    "We also want to give people someone to talk to if they feel they are unable to raise their concerns through the usual channels. This is where Fair Treatment Officers come in – they play an important role in creating the culture we pride ourselves on."

    According to FTO Coordinator Joseph Morgan, there are FTOs in different areas of the company to make sure there is a good range. "That includes people in key roles on different sites, on different shifts, working underground and in the office. We also ran a big campaign to make sure everyone knew about them, including a brochure, photos on the intranet and speaking at meetings."

    Rhonda said that the Fair Treatment Officers at Northparkes also audit the workplace to ensure it is free from harassing or bullying materials, provide information to human resources about the type of issues they are consulted about, and make recommendations on further steps that could contribute to a healthy, harassment-free work culture.

    Joseph said that the Board’s training is effective in giving the company’s FTOs the skills they need. "As well as learning about the various laws that cover the workplace, we did case studies which were quite an eye-opener for the new recruits. I don’t think they realised how serious some workplace problems can be."

    The Board tailors its contact officer training for the industry involved. We also review your policies procedures and make recommendations on how to improve your processes and reduce the likelihood of workplace problems and complaints.

    More information about the Board’s training service

     

    Kevin Kitchener Murray Chapman and Chris Ronalds  

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    Vale Kevin Kitchener     

    Longtime Aboriginal barrister and past Anti-Discrimination Board (ADB) staff member Kevin Gary Kitchener died recently at the age of 67.

    One of the first Aboriginal members of the NSW Bar (notably receiving his law degree at the age of 41 after years of part-time study), Kevin served as head of the Aboriginal Issues Unit as part of the Royal Commission into Aboriginal Deaths in Custody in the late 1980s. He oversaw extensive consultations with a broad cross-section of Aborigines on the contributing factors leading to the high arrest and imprisonment rates of community members.

    From 1991 he worked as a legal adviser and advocate for Aboriginal and legal aid centres in Port Hedland, Darwin, Mt Isa, Kalgoorlie, Brisbane, and Townsville. Kevin entered private legal practice in Townsville in 2005, retiring due to ill health in 2014.

    Kevin’s long association with the ADB began in 1981 as an assistant research officer. In this capacity he worked on the ground-breaking report, Study of Street Offences by Aborigines, travelling throughout regional NSW to undertake research in association with the NSW Bureau of Crime Statistics and Research and the Police Aboriginal Liaison Unit.

    Between 1983 and 1989 Kevin served in a number of investigatory and conciliation roles at the ADB. He was heavily involved in educating Aboriginal communities about the Anti-Discrimination Act, the role of the ADB and the types of complaints that can be lodged. He also conducted training for government departments on the handling of discriminatory behaviour.

    Kevin was a very social person with an enquiring mind and a wicked sense of humour. He was always willing to help his family, friends and colleagues and will be sorely missed by everyone who knew him. The ADB extends its condolences to his extended family.

    Photos: (Left, L-R) Kevin Kitchener, Murray Chapman and Chris Ronalds working on the Board's Study of Street offences by Aborigines in 1982;  Kevin with Bob Bellear (L), the first Aboriginal Judge in Australia.

         

    People shaking hands in agreement  

    Complaints resolved through conciliation

    Carer’s discrimination in employment

    An employee of a government service took extended sick leave to care for his wife who was pregnant and then had cancer. Eventually he resigned. Several years later he applied for employment in a similar position with a related service, but his application was declined.

    When the man asked why this was the case, he was told that there was a note on his employment file saying he was not to be re-employed due to an unsatisfactory previous history. He later discovered through a freedom of Information application that this was because of absenteeism.

    The man explained the circumstances surrounding his time off work, but the employer said that their policy was to make people unsuitable to re-hire if there was a certain level of non-attendance, and for this to stand indefinitely. The man therefore lodged a complaint of carer’s responsibilities’ discrimination.

    The Board assessed the complaint as a possible case of indirect discrimination, where a rule or requirement affects one group of people (in this case, people with carer’s responsibilities) more adversely than people who are not in that group. The complaint was resolved by negotiation when the employer agreed to delete the note from the complainant’s file and allow him to reapply for employment.

    Disability discrimination in goods and services

    A young man with schizophrenia attended a private swimming centre with his mother as part of his therapy. On previous occasions his mother had not been charged an entry fee on the basis that she was his carer, but on a particular day the director of the centre noticed they were both swimming and said the mother should be charged as well.

    The complainant felt it was unfair to charge his mother as she accompanied him for motivational reasons. However the director said that everyone who swam was subject to a fee regardless of whether or not they had a disability or were a carer.

    The complaint was resolved at conciliation when the director of the centre agreed to allow the complainant’s mother to continue to swim without charge when she was accompanying her son.

    Disability discrimination in employment

    A woman who has bipolar disorder worked for a state government service in a position that involved shift work. Due to her condition, she needed a regular work arrangement which would minimise her stress and reduce the likelihood that she would have an episode of illness.

    The employer changed the way the shifts were organised so the woman no longer worked the same shift all the time. At the same time, she was also asked to perform extra shifts at the last minute to cover for staff absences. This led to a deterioration in her condition for which she was hospitalised.

    She lodged a complaint of disability discrimination with the Board. When we contacted the employer, they said they were committed to continuing to employ the complainant and had made various accommodations for her such as moving her to a smaller workplace which was less stressful. They said they would comply with the recommendations of her most recent psychiatric report.

    The complaint was resolved when the employer agreed that although they could not return to the previous arrangement where the complainant worked the same shift all the time, they would set her shifts well in advance so she knew what would be happening, and would ensure that she was never asked to work at short notice.

    Sex discrimination and carer’s responsibilities in employment

    A customer service attendant made a complaint of sex discrimination on the grounds that her employer did not provide her with suitable arrangements to deal with her pregnancy. She also complained that she was discriminated against on the ground of carer’s responsibilities because they did not give her a transfer to be closer to her family.

    The complaint was resolved at conciliation when the complainant accepted a transfer to a location closer to home and the respondent agreed to provide her with a statement of regret.

    Race discrimination in service provision

    An Aboriginal man with an ongoing health condition sought the assistance of a service that helped Aboriginal people with medical bills. When he returned to his specialist and told her this she remarked that he "didn’t look Aboriginal".

    The man was offended by this and his wife made a complaint of race discrimination on his behalf. In response, the specialist said that the initial comment was made in the context of light-hearted banter with a patient she had known for some time, and she didn’t mean any offence. She said that the client’s wife had been aggressive and intimidating towards her during the appointment and this had upset her.

    However, the specialist said she could see in hindsight that the remark could have been offensive and the man was upset by it. The complaint was resolved when the specialist wrote a letter apologising to the complainant.

    Disability discrimination in employment

    An engineer in the mining industry was partly incapacitated as a result of a workplace injury. He complained that his supervisor subjected him to jibes and adverse comments because he was on restricted duties, and then his employment was terminated under guise of a restructure.

    The complainant maintained that he could perform the inherent requirements of his position with some minor adjustments to the work process which would not create unjustifiable hardship for the employer. The complaint was resolved when the complainant accepted a payment of $18,000 in settlement.

    Disability discrimination in employment

    The complainant worked casually as Responsible Service of Alcohol Marshall at a hotel. He said that after his employer became aware that he had a pre-existing injury, they did not offer him any more work, allegedly because he was no longer needed due to expenditure cuts.

    The respondent denied any knowledge of the complainant’s pre-existing injury. They said they had made it clear to the complainant that he was no longer needed due to operational reasons. The matter was resolved when the complainant accepted a payment of $1,500 in settlement.  

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