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Are there rules for languages spoken at Australian workplaces?

By | Discrimination

Bonjour, Bongiorno, Guten Tag, Ni Hao, Konnichiwa, Hola, Hello.

You may have understood and/or recognised one or more of those greetings in a number of languages, but if the conversation went any further, would you be able to follow? Say this conversation took place in the workplace, what would that mean for you? How would you feel?

As an employee or worker in Australia, could speaking in a language other than English in the workplace constitute exclusion of other employees? Possibly a form of bullying? Or, could a complaint or direction in relation to speaking or not speaking a particular language in the workplace constitute discrimination?

This is not a topic that has been widely tested in the courts. A case (The Western Australian Mint & Industrial Personnel Company Pty Ltd v Jinda Tuinaphiang and Siriphon Linda Schulze) heard back in 2002 by the Equal Opportunity Tribunal of Western Australia involved two employees whose native language was Thai. The two employees were directed not to speak Thai in the workplace to the exclusion of another employee who did not speak or understand Thai. The two Thai speaking employees made a claim for discrimination based on race as a result of the direction not to speak Thai in the workplace.

The Tribunal found that the two employees excluded another employee through their ‘exclusionary discussion in the Thai language’. The Tribunal further accepted that the only reason that the direction was made was to try and resolve the dispute that had arisen between the two Thai speaking employees and another non-Thai speaking employee; and that the direction therefore came about in an attempt to solve a workplace dispute and disagreement, and was not occasioned to treat the two Thai-speaking employees less favourably. Ultimately, the Tribunal found that there was neither direct nor indirect discrimination, because it was not because of, or “on the ground of”, the race of the complainants or any relevant characteristic that the direction was made.

Further, in Fernandes v State of New South Wales [1999] NSWADT 32, the New South Wales Administrative Decision Tribunal said that ‘the Tribunal regards it as totally acceptable for two employees in the workplace to have a private conversation in a language other than English.’. However, the Tribunal went on to say that if the conversation conducted in a language other than English had occurred as part of a broader group discussion, or in proximity of a third employee who felt that they were being discussed, then the request may have had some justification, indicating that, without otherwise, it would not.

What this means is that discrimination on the ground of race could occur if a person is disallowed to speak their native language in a particular workplace setting. Whether the term, condition or requirement regarding speaking or not speaking a certain language in the workplace is reasonable will depend on the circumstances of each case. To be unreasonable, the requirement must be found to have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, of any human right or fundamental freedom in a field of public life.

For example, in the case of the Western Australian Mint, if the direction to not speak Thai around another co-worker was not for the purposes of solving a workplace dispute and was just a direction that all employees must speak English while at work, then could be considered racial discrimination.

The concept of reasonableness has been considered by the High Court of Australia and it was concluded, by a majority, that ‘reasonable’ referred to what was reasonable in all the circumstances of the case, and involves considering not only the position of the complainants but also the position of the Corporation. If we take this interpretation to the case of the Western Australian Mint, what was reasonable in all of the circumstances, including the fact that the complainants were both able to speak English, and the direction not to speak Thai in the workplace was for the purpose of resolving a workplace dispute and ultimately maintaining a healthy and safe workplace, then the Tribunal’s finding of no-discrimination may make sense.

Evidently, the circumstances of each case, particularly when it comes to discrimination, will weigh on what is considered as reasonable and therefore what would constitute direct or indirect discrimination in the workplace regarding a direction to speak or not speak a certain language.

Take-Aways:

Although it is unlikely that your employment contract or workplace policies will specify a particular language that you need to speak, nor expressly exclude the speaking of another language in the workplace:

  • Employees should be conscious of their surroundings and/or the circumstances in which they speak another language in the workplace to avoid feelings of exclusion or isolation by other employees;
  • Employees have a right to speak languages other than English in the workplace;
  • If directed not to speak in a particular language or to speak in one language only in the workplace, employees should be aware of their rights
  • This topic is particularly relevant for immigrant workers and workers on visas, or whose first language is not English
dos and donts of a office party

Can My Employer Direct Me to Attend an Independent Medical Examination (IME)?

By | Unfair Dismissal

Has your employer directed you to attend a medical examination by a doctor of their choice?  You may be questioning whether your employer has the right to require you to attend that independent medical examination (IME).

Every case is different and the answer as to whether you are obligated to attend an IME at the directive of your employer may vary from case to case.

Work Health and Safety laws impose strict obligations on employers to ensure the safety and well-being of its employees, and on employees to ensure their own health and safety at work.  For example, in New South Wales, the Work Health and Safety Act 2011 (NSW) imposes duties and obligations upon an employer between sections 19 and 26, and at section 28 for employees.

In order to abide by their obligations, an employer may request an employee to attend a medical examination to confirm their fitness for work.  For example, this may occur in the following circumstances:

  • if an employee is proposing to return work following a workplace injury;
  • if an employee has been on restricted duties for an extended period of time and is about to return to full duties; or
  • if an employee has been on an extended period of sick leave.

There are several ways that an employer may require an employee to attend an IME, such as:

  • a term in an employment contract or enterprise agreement expressly provides an employer with a right to direct its employees to attend an IME in certain circumstances;
  • an employer may be given an express right to send employees to an IME under legislation that applies to a particular industry or sector that an employee works in. For example:
  • coal mine workers in Queensland are obligated to comply with instructions given that are related to health and safety, including a direction to attend a medical appointment pursuant with section 39 of the Coal Mining Safety and Health Act 1999 (Qld) and determined by the Full Court of the Federal Court in Grant v BHP Coal Pty Ltd;
  • Commonwealth public sector employees may be directed by their agency head to attend a medical examination for the purposes of assessing the employee’s fitness for work as prescribed under regulation 3.2 of the Public Service Regulations 1999 (Cth).
  • an employer asking an employee to attend an IME and that employee agrees; or
  • an employer issues an employee a lawful and reasonable direction for the employee to attend an IME.

Is an employer’s request for an employee to attend an IME a lawful and reasonable directive?

An employer has a right at common law to issue their employees with a lawful and reasonable directive, which employees are obligated to obey.

The Full Court in Blackadder v Ramsey Butchering Services Pty Ltd found that an employer also has a right to request an employee to attend an IME if there is genuine indication of a need for it and it is reasonable for your employer to make such a request.

Based on the authority of Blackadder, Commissioner Roe of the Fair Work Commission considered in Daniel Cole v PQ Australia Pty Ltd that a number of factors needed to be taken into consideration when determining whether an employer’s request for an employee to attend a medical examination was reasonable.  These factors include:

  • whether there is a genuine indication of the need for the examination, such as:
  • prolonged absences from work;
  • absences without explanation; or
  • evidence of an illness which relates to the employee’s capacity to perform the inherent requirements of their job;
  • whether the employee provided adequate medical information to the employer to explain absences and demonstrated the employee’s fitness to perform their duties;
  • whether the industry or workplace works in is particularly dangerous or risky;
  • whether the employer has legitimate concerns that an employee’s injury or illness will impact on others in the workplace;
  • whether an employee was advised of the details of the conduct which led to the employer’s concerns that the employee was not fit for duty;
  • whether the medical practitioner of the employer’s choice has been advised of the issues of the employer’s concerns and were those matters focused on the employee’s inherent requirements to perform the job;
  • what information the employer proposed to give the medical practitioner about the employee’s actual job requirements;
  • whether the employee was advised of the matters to be put before the medical practitioner for their assessment; and
  • whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.

Employer’s do not have an unfettered right to direct its employees to attend an IME.  However, employees should be mindful before refusing to attend an IME at the directive of their employer’s, because failing or refusing to abide a lawful and reasonable directive may result in disciplinary action, including termination of their employment.

If you have been directed by your employer to attend an IME, make sure you obtain as much information as possible from your employer, including:

  • the reasons why your employer is directing you to attend an IME;
  • the questions your employer intends to ask the medical examiner;
  • the documents your employer intends to provide the medical examiner; and
  • the nature of the proposed medical examination, whether it will be a physical or psychological assessment.

If you have any questions or require advice if you are required to attend an IME at the request of your employer, please contact our office on 1300 851 430 to speak with one of our employment lawyers.

unfair dismissal compensation

Conflicting medical evidence: Who makes the final call?

By | Unfair Dismissal

Recently, the Full Bench of the Fair Work Commission (‘Full Bench’) in CSL Limited T/A CSL Behring v Chris Papaioannou was asked to determine whether an employer or the Fair Work Commission makes the final call on whether an employee has capacity to perform their role when there is conflicting medical evidence.

Background

Mr Papaioannou was employed by CSL Limited T/A CSL Behring (‘CSL’) from 1 July 2008 until 6 July 2017 as a ‘Plasma Receipt Operator’. On 6 July 2017, CSL terminated Mr Papaionnou’s employment on the basis that he did not have capacity to perform his role due to a medical condition. At the time of termination, CSL had to hand two conflicting medical reports in relation to Mr Papaioannou.

What’s the relevant legislation?

Section 387 of the Fair Work Act 2009 (Cth) (‘the Act’) sets out the criteria that the Fair Work Commission must consider whether a dismissal was unfair. In particular, subsection (a) says:

the FWC must take into account:

  • Whether there was a valid reason for the dismissal related to the person’s capacity or conduct” (emphasis added)

In the Commission decision of Lion Dairy & Drinks Milk Ltd v Norman  (‘Lion Dairy’) the majority of the Full Bench decided that in the case of conflicting medical evidence concerning an employee’s capacity, it was up to the employer to resolve the conflict. So long as an employer had reasonably relied on the medical evidence before them in determining that an employee no longer had capacity to perform work, the employer would have a ‘valid reason’ for termination.

Lion Dairy was contrary to an earlier decision of the Full Bench in Jetstar Airways Ltd v Neetson-Lemkes  (‘Jetstar’). In Jetstar the Full Bench decided that it was the Commission’s role to determine whether at the time of dismissal an employee did not have capacity to perform work based on the relevant medical evidence, not the employers.

Initial Decision

At the first instance in the Papaioannou case, Commissioner Ryan determined that there was a ‘valid reason’ for CSL to terminate Mr Papaioannou’s employment based on his incapacity to perform his role.

Commissioner Ryan based his decision on a medical report that CSL had at the time of the dismissal that argued Mr Papaioannou would not have capacity for work for the foreseeable future. This was despite CSL being in receipt of a different medical report that estimated Mr Papaioannou could return to work within 6 months. In doing so, Commissioner Ryan adopted the reasoning in Lion Dairy.

Despite finding that there was a valid reason for CSL to dismiss Mr Papaioannou based on his incapacity, Commissioner Ryan granted the application for other reasons. CSL appealed the decision of Commissioner Ryan.

Appeal

On appeal, the Full Bench quashed the decision of Commissioner Ryan and remitted the matter for re-hearing. The Full Bench was asked to consider the conflicting authorities on the question of how medical evidence is used in determining whether an employee had the capacity to perform their role.

The Full Bench reviewed the cases interpreting unfair dismissal provisions in both the Fair Work Act 2009 (Cth) and previous iterations. They concluded that the decision in Lion Dairy was wrong and that the correct approach to conflicting medical evidence should be the one adopted in Jetstar. That being, in a case where employers have conflicting medical evidence in respect of an employee’s capacity for work, it is up to the Commission to resolve the difference, not the employer. As a result, Commissioner Ryan erred when adopting the approach in Lion Dairy and the matter should have instead been decided using the reasoning in Jetstar.

Lessons for employees

As a result of the Full Bench ruling, it is not a defence to an unfair dismissal application for an employer to rely on its preferred medical evidence where conflicting evidence exists.  Instead, if there is conflicting evidence in relation to an employee’s capacity to perform work, the Fair Work Commission has the role of determining whether an employee had capacity by reviewing the medical evidence.

If you are an employee who has been dismissed because of medical evidence, you should consider talking to an employment lawyer about any potential options you may have, particularly when that evidence is conflicting.

Casual Conversion Clause

By | Unfair Dismissal

Are you a long-term casual employee? Do you know you probably have the right to request that your employment be converted to a part-time or full-time basis?

In July 2017, the Full Bench of the Fair Work Commission (‘the Commission’) ruled that regular casual employees who were employed for more than 12 months and met certain criteria had the right to request that their employment be converted to full-time or part-time employment.

The Commission ordered that the new casual conversion clause be inserted into 85 modern awards from 1 October 2018. If you are covered by a modern award, it is likely that the casual conversion clause applies to your employment.

Criteria

In a nutshell, the casual conversion clause gives ‘regular’ casual employees the right to request to their employer that their employment be converted to part-time or full-time. A regular casual employee is defined as:

…a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

 

The Request

A casual employee’s request for conversion must be in writing and the employer must respond to the request in writing within 21 days. The employer can only refuse the request on ‘reasonable grounds’ and after consulting with the employee.

Reasonable Grounds

As stated, an employer can only refuse a casual employee request for conversion on ‘reasonable grounds.’ The casual conversion clause sets out a number of factors that include reasonable grounds for refusal. These include:

  • it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee;

 

  • it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

 

  • it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months;

 

  • it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.”

 

Are you a regular casual employee?

If you think you are a regular casual employee, it may be worth considering whether you should exercise your right to request conversion to full-time or part-time employment if you are covered by a modern award. If you do make a request and your employer refuses your request, you should consider whether your employer has made its refusal to you in writing, within 21 days, and whether your employer has applied the factors that can be considered as reasonable grounds for refusal. If you feel your employer has not complied with its obligations under the casual conversion clause, you should consider speaking to an employment lawyer.

Sexual Harassment Law in Australian Workplaces

By | Sexual Harassment

WHAT IS SEXUAL HARASSMENT?

Sexual harassment is sexual behavior that is unwanted or unwelcome. The tests for determining what amounts to sexual harassment under the relevant Australian legislation are slightly different, however, broadly sexual harassment can be defined as conduct that:

  • is of a sexual nature;
  • is unwelcome or unsolicited; and
  • the person engaging in the conduct did so with the intention of offending, humiliating or intimidating the person or a reasonable person would anticipate in the circumstances that the person being harassed would be offended, humiliated or intimidated.

Sexual harassment is a type of sex discrimination. In Australia, State and Commonwealth legislation provide that sexual harassment and discrimination on the basis of sex, is unlawful. The following is the list of Commonwealth and State legislation that operate to protect persons from sexual harassment:

  • Sex Discrimination Act 1984 (Cth);
  • Anti-Discrimination Act 1991 (Qld);
  • Equal Opportunity Act 2010 (Vic);
  • Anti-Discrimination Act 1977 (NSW);
  • Equal Opportunity Act 1984 (SA);
  • Anti-Discrimination Act 1992 (NT);
  • Equal Opportunity Act 1984 (WA);
  • Anti-Discrimination Act 1998 (Tas); and
  • Discrimination Act 1991 (ACT).

THE LEGISLATIVE TESTS FOR SEXUAL HARASSMENT

The Commonwealth and Queensland legislative provisions have been considered in this article and are as follows:

Section 28A of the Sex Discrimination Act 1984 (Cth) defines sexual harassment as follows:

Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favors, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

  • (1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
    • the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
    • the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
    • any disability of the person harassed;
    • any other relevant circumstance.

(2) In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Section 119 of the Anti-Discrimination Act 1991 (Qld) states that:

“Sexual harassment” happens if a person—

(a) subjects another person to an unsolicited act of physical intimacy; or

(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

(c) makes a remark with sexual connotations relating to the other person; or

(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—

(e) with the intention of offending, humiliating or intimidating the other person; or

(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

The Commonwealth and Queensland tests are slightly broader then some States, as the above tests provide for a reasonable person test where a reasonable person would have ‘anticipated the possibility’ that the individual would have been offended, humiliated or intimidated by the harasser’s behavior. However, in (for example) New South Wales, South Australia and Victoria the legislation provides for a slightly narrower test as it includes only the word ‘anticipated’.

IN AUSTRALIA, SEXUAL HARASSMENT:

  • does not have to be deliberate or repeated to be unlawful, it can be a one-off incident;
  • can be verbal, physical or visual;
  • can still be considered sexual harassment whether or not the person who engaged in the conduct intended to give offence; and
  • can also be of a criminal nature such as sexual assault or indecent exposure. In that instance, criminal laws can apply.

SEXUAL HARASSMENT IN THE WORKPLACE

Sexual harassment can occur anywhere, however, this article focuses on sexual harassment in the workplace.

Sexual harassment at work can be committed by an employer, a colleague, contractor, client or other person who is in a working relationship with the person who has been sexually harassed. This article considers the rights and responsibilities of employers and employees and the options for employees who are sexually harassed at work.

A toxic workplace culture can lead to disharmony in the workplace, job dissatisfaction, higher turnover rates as employees leave and sexual harassment claims. It is important to understand the type of behaviour and circumstances that can constitute sexual harassment in the workplace.

The following are some examples of the type of conduct that can constitute sexual harassment:

EXAMPLES OF SEXUAL HARASSMENT:

  • gestures that are sexual, staring at a person or whistling;
  • exposing a person’s genitals;
  • banter that is insulting and/or demeaning;
  • displaying pornographic material – posters, photos, website, emails or videos in the workplace;
  • indecent or explicit comments about your appearance;
  • touching, groping, pinching or hugging a person, trying to take a colleague’s clothes off – such as unzipping a uniform;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • sending sexually explicit text messages, emails or phone calls to a person; and
  • being subjected to a “boys club” atmosphere where you have to hear sexual comments made to other employees in the workplace.

SEXUAL HARASSMENT CASE STUDIES

The Work Christmas Party

Julie went to the work Christmas Party which was held at a hotel bar in the city. Upon walking into the work function, Julie’s male work colleagues wolf whistled at her and made sexual remarks about her dress and her breasts. Later in the evening, one of Julie’s male colleagues Brian started dancing on the dance floor near Julie. He then proceeded to loosen and lower his pants, then turned around and bent over to show Julie his bare bottom.

Harassment by co-workers

One of Jennifer’s colleagues superimposed Jennifer’s face on a suggestive pornographic picture and then emailed it around the entire office. Following this, several colleagues of Jennifer’s made sexual comments about her appearance and her sexual ability when she went to the lunchroom to have her lunch break.

Harassment by Manager

Steven worked at a music store part-time. After three months of employment, Steven’s Manager Laura started to make inappropriate comments to Steven about his sex life. It was a small music store and Laura was Steven’s main supervisor at work. Steven only met the owner of the business once during his employment. Laura, his Manager, wanted to know if Steven was sexually active. She would read pornographic magazines in front of Steven to see if he was ‘turned on’. A couple of months later, Laura placed her hand on Steven’s backside and kissed Steven directly on the mouth. Following this, Laura would regularly try and keep Steven back at work after closing time and attempt to engage in sexual intercourse with him or make sexual suggestions. Steven needed the money and was unable to resign from his employment, until he secured an alternative job. Upon finding another job, Steven resigned immediately from the music store.

Sexual harassment in the workplace can have a significant and detrimental effect on a workplace and a person’s well-being.

EMPLOYER OBLIGATIONS

An employee has the right to a workplace that is free of discrimination, sexual harassment and vilification. An employer has a duty of care to ensure an employee’s health and well being at work and to take reasonable steps to prevent harassment from occurring.

This can be achieved by an employer:

  • implementing and enforcing policies on discrimination and harassment;
  • providing regular training;
  • setting out a clear complaint process, so employees know what to do if they have an issue.

It is not satisfactory for an employer to discharge their duty of care under the legislation by the employer just having the policies and procedures in place. An employer must actively enforce the policies and provide continuous training on harassment.

VICARIOUS LIABILITY

If an employer does not meet its obligations to provide a harassment free workplace, an employer can be held to be vicariously liable if an employee is sexually harassed at work. This means that the employer can be found accountable for the actions of the person who engaged in the sexually harassing behaviour.

The legislative provisions in relation to an employer’s vicarious liability are as follows:

Section 106 of the Sex Discrimination Act 1984 (Cth) sets out the vicarious liability of an employer.

Vicarious liability etc.

(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

  • an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II);
  • or
  • an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

State legislation also provides that an employer will be found liable if a worker breaches the Act. Section 133 of the Anti-Discrimination Act 1991 (Qld) provides that:

133 Vicarious liability

(1) If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.

(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

However, it is not only an employer who is responsible. An employee also has responsibilities.

EMPLOYEE RESPONSIBILITIES

Employees have a responsibility to ensure that they do not engage in discriminatory, sexually harassing or inappropriate behavior at work. Further, they have a responsibility to comply with their employer’s workplace policies that cover this type of conduct.

In addition, an employee ought not encourage or request a person to engage in this type of conduct as this is also inappropriate behavior.

If an employee engages in sexually harassing behavior, then that employee may:

  • face disciplinary action by their employer which could include being dismissed from their employment; and/or
  • have a formal complaint made against them by the person subjected to the alleged harassment.

If a complaint is made to the Australian Human Rights Commission or the Anti-Discrimination Commission in their State or Territory, an employee can be found to be personally liable and face penalties. This may mean that an employee may have to pay damages such as monetary compensation to the person they harassed (or encouraged to be harassed).

Employees in senior positions such as Managers, Supervisors or Executives have a responsibility by virtue of their senior positions to demonstrate acceptable workplace behavior and take steps to prevent harassment in the workplace occurring. Senior employees and Management ought to ensure that they actively promote and support workplace policies and procedures in relation to sexual harassment and take appropriate action in circumstances where a complaint has been lodged.

PREVENTATIVE MEASURES AND STRATEGIES

A workplace can achieve a harassment free zone if everyone is vigilant, mindful of their behavior and does not permit this type of behavior in the workplace or for it to continue to go unchecked.

To that end, there are a number of strategies that can be employed by an organisation to prevent harassment in the workplace. These are as follows:

  • implement policies and procedures on sexual harassment;
    conduct regular meetings in the workplace where the workplace policies and procedures on harassment are discussed. This will assist in making it clear to employees what is harassing behavior, what behavior is expected of them at work and the avenues for an employee to make a complaint if an employee is subjected to harassment;
  • schedule refresher training to take place on workplace harassment and discrimination. Discuss scenarios with the employees which demonstrate discriminatory or harassing behavior or material to ensure that all employees are aware of what is and isn’t appropriate behavior;
  • audit the workplace to determine if there is material displayed that may be inappropriate or discriminatory; and
  • ensure employees are aware that complaints will be taken seriously and employees will face disciplinary action if they engage in inappropriate behavior.

WHAT STEPS CAN BE TAKEN IF AN EMPLOYEE HAS BEEN THE SUBJECT OF SEXUAL HARASSMENT?

As a general rule an employee can make an internal complaint within their organisation or make a formal complaint to an external body such as the Australian Human Rights Commission or Anti-Discrimination Commission in their State or Territory. These options are explored further below.

INTERNAL COMPLAINT

Internal Complaint Steps

There are a number of steps that can be taken internally by an employee who is of the view they are being sexually harassed in the workplace.

  1. Review the workplace’s organisations policies and procedures on sexual harassment (if any). A policy will usually set out what is the meaning of sexual harassment under the applicable legislation and the avenue for making a complaint.
  2. Write down the incident or incidents of when the employee was sexually harassed. It is important to include as much detail as possible of the alleged incidents, such as dates, times and if any witnesses. If the offensive material is in writing or pictures, a prudent step is to print the material out or take a photograph. This will aid an employee in making a complaint and/or to be able to discuss the situation.
  3. It may be appropriate at first instance for the person being harassed to approach the harasser directly and ask them to stop this behavior. This can also be done in writing by the person being harassed. However, it is important that the individual being harassed only approach the harasser directly if they feel this may stop the behavior and not put the person in a position where the employee may be subjected to further inappropriate behavior or retribution.
  4. Approach a Manager/Supervisor (if the employee feels comfortable) or the person who the employee thinks would be the most understanding and in a position to deal properly with the matter. The organisations policy may set out who an employee can go to if the employee feels they are being sexually harassed.
  5. Make a complaint in writing to the employee’s organisation about the harassing behavior.

FORMAL EXTERNAL COMPLAINT

Internal Complaint Steps

If an employee has been sexually harassed at work, there are several avenues available to an employee to make a formal external complaint. There are a number of reasons as to why an employee may wish to make an external complaint, whether it be that the employee has made an internal complaint with their employer and no action has been taken or the employee did make a complaint, but the situation hasn’t been resolved to their satisfaction.

State and Territory Anti-Discrimination Commissions and the Australian Human Rights Commission are the authorities in Australia that can investigate and resolve complaints relating to sexual harassment. The State and Territory Commissions are listed as follows:

  • ACT Human Rights Commission;
  • Anti-Discrimination Board of New South Wales
  • Anti-Discrimination Commission of Queensland
  • Equal Opportunity Commission Western Australia
  • Northern Territory Anti-Discrimination Commission
  • Office of the Anti-Discrimination Commission (Tasmania)
  • South Australia Equal Opportunity Commission
  • Victorian Equal Opportunity and Human Rights Commission.

An employee can contact the Australian Human Rights Commission or their State or Territory Commission directly to make a formal complaint.

WHAT MATTERS OUGHT TO BE INCLUDED IN A FORMAL COMPLAINT?

Generally, a complaint must:

  • be made in writing;
  • be made by the person (or on behalf of that person) who has been the subject of the alleged harassment;
    set out the events or acts of harassment that occurred. It is important to include as much detail as possible, such as dates, times and places, who was involved and what happened. If there were any verbal comments that were made and what these words or statements were;
  • include why the actions set out in the complaint are unlawful, that is, how did the actions of the harasser contravene the legislation which prohibits this behavior. Refer to humanrights.gov.au and the applicable State and Territory websites such as the www.adcq.qld.gov.au (if you are in Queensland) for more information on the requirements for lodging a complaint;
  • include any relevant supporting documents with the complaint. For example, any emails that contain sexually harassing content from the person who has harassed the complainant; and
  • if an employer did not take any measures to prevent the harassment from occurring, this ought to be included within the complaint. Further, if the relevant employer does not have a workplace policy on sexual harassment, or does, but doesn’t abide by it or failed to take any action after becoming aware of the sexual harassment, these are also important matters to address in the complaint. The complaint ought to include how the employer is vicariously liable with reference to the relevant section of the legislation.

TIME LIMITS

There are time limits associated with making a complaint. Generally, the person who has been harassed has between six to 12 months to make a complaint from when the alleged acts or act of sexual harassment occurred.

It is important to check time limits with the applicable Commission or refer to the legislation if a person wishes to make a complaint.

WORKPLACE PROTECTIONS

Under anti-discrimination legislation there are also protections from victimisation. Victimisation is when a person victimises another person because they have made a complaint, intend to make a complaint or have assisted someone else to make a complaint (such as by giving evidence or information).

An individual or corporation who has been found to be victimising a person can be fined or face imprisonment in certain circumstances.

If a person makes a complaint and as a result of them making a complaint, their employer takes adverse action against them, there are also workplace protections under the Fair Work Act 2009 (Cth) that prohibit this behaviour. Adverse action may include an employer demoting the employee who made the complaint, dismissing the employee or reducing their hours as a consequence of them making a complaint in relation to their employment.

If an employee makes a complaint with the Fair Work Commission on the grounds that their employer took adverse action against them, timeframes apply to the making of the complaint.

If as a result of the employee making a complaint their employer dismisses them, they have 21 days after the date the dismissal took effect in which to file a general protections application with the Commission. However, the 21 day time limit does not apply to this type of application if it does not involve a dismissal. If an employee has not been dismissed (but for example demoted) than they have up to six years from the day that the contravention occurred to lodge an application.

CASE LAW

In recent years, the decisions being handed down by Courts and Tribunals in Australia in relation to sexual harassment have shown a change in the amount of damages being awarded to complainants in this area.

Historically, the awards for damages for persons who have been sexually harassed have been quite marginal, with awards for damages ranging between $1000 to $20,000. However, due to changing community expectations, there has been a shift in the judicial system with damages being awarded for sexual harassment in the workplace ranging from $300,000 to $1,300,000 in certain cases.

The following recent cases are examples of where an increased amount of damages have been awarded in Australia by Courts and Tribunals:

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

In the 2014 decision of Richardson v Oracle Corporation Australia Pty Ltd, the Full Court of the Federal Court awarded damages to Ms Richardson against her former employer as a result of the sexual harassment she was subjected to by her colleague. At first instance, Ms Richardson was only awarded $18,000 for her pain and suffering and loss of enjoyment of life. Further, Ms Richardson was not successful in her claim for economic loss. However, Ms Richardson appealed that decision.

The Full Court of the Federal Court held differently to that of the Judge at first instance and stated that the award of damages was “manifestly inadequate” when considering community standards and expectations. Consequently, Ms Richardson was awarded $100,000 by the Full Court for the psychological harm, damage to her reputation and the detrimental effect the sexual harassment had on her relationship with her partner. In addition, the Full Court was of the view that there was a “sufficient causal link” between Ms Richardson’s resignation from her employment with Oracle and the sexual harassment she suffered. Accordingly, the Court also awarded her $30,000 for economic loss.

Matthews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728

In Matthews v Winslow Constructors (Vic) Pty Ltd, the Supreme Court of Victoria awarded an employee $1.3 million in damages after she was subjected to daily sexual harassment and bullying in the workplace. The employee was a laborer for a construction company and had to endure inappropriate conduct for two years. This included being shown pornographic material, having employees grab her and imitate a sexual act on her, being called names such as ‘bimbo’ and ‘useless’ and questioned about her sex life. Her supervisor, who was the site foreman, also engaged in this inappropriate behavior so the employee felt she couldn’t make a complaint to him.

The final straw for the employee was when a fellow colleague then stated that he would ‘follow her home and rape her’. Due to this, the employee resigned from her employment as she was so frightened. As a result of being subjected to this behaviour, the employee suffered a major depressive disorder, a jaw injury from grinding her teeth, chronic PTSD and a loss of past and future earnings due to the significant inappropriate behaviour she was subjected to whilst at work.

Collins v Smith (Human Rights) [2015] VCAT 1992

In the decision of Collins v Smith, Ms Collins worked in a post office and was repeatedly sexually harassed by her employer Mr Smith. Ms Collins was subjected to sexual harassing behavior over a period of approximately five months. Mr Smith requested that Ms Collins have sex with him, made sexual comments and sent text messages of a sexual nature, attempted to kiss Ms Collins and touch her inappropriately. Ms Collins eventually had to resign from her employment as a result of Mr Smith’s behavior. The Tribunal adopted the reasoning of the Full Court in Richardson v Oracle for assessing the damages payable to Ms Collins. Ms Collins was awarded an amount of damages totally $332,280. This comprised of general damages of $180,000 for her chronic post-traumatic stress disorder, major depressive disorder and anxiety disorder she developed as a consequence of the sexual harassment and the detriment effect this conduct her on her marital relationship, aggravated damages of $20,000, past and future loss of earnings and superannuation of $120,000 and out of pocket expenses of $12,280.

STU v JKL (Qld) Pty Ltd [2016] QCAT 505

In the 2016 decision of STU v JKL (Qld) Pty Ltd, the complainant was awarded $313,000 in damages after she was sexually assaulted by a work colleague in her room in accommodation that was provided by her employer. It was held that the incident occurred during the course of the employee’s employment as she was in accommodation the employer had provided her for relocating to Brisbane for the job. As a result of the incident, the employee suffered from depression and post traumatic stress disorder. The employee was awarded general damages for the pain and suffering and also future and past loss of earnings due to the sexual harassment and assault.

sexual harrassment

Family and Domestic Violence Leave to be Recognised in Modern Awards

By | Sexual Harassment

Family and Domestic Violence Leave to be Recognition in Modern Awards

Domestic violence is a significant issue in Australia that effects many individuals and has a real impact on employees and employers.

The Fair Work Commission has recognised the detrimental effect of family and domestic violence.  In light of this, the Commission is in the process of including unpaid family and domestic violence leave in modern awards as it understands that this is not only a community issue but also a workplace issue.  As this affects your workplace rights, Anderson Gray wishes to take this opportunity to update you on the process of this important inclusion to your workplace rights.

The Commission has found that existing leave entitlements may not meet the needs of an employee experiencing family and domestic violence.  Further, that a specific response needs to be devised to deal with this issue in the workplace and that there is no existing workplace right for an employee experiencing these issues to be absent from the workplace to find alternative accommodation or attend urgent court proceedings.

At this time, whilst the Commission did not agree with providing paid family and domestic violence leave, the Commission has held that employees should be able to access paid personal/carer’s leave for family and domestic violence reasons.

The Commission along with interested parties are currently developing a model term that covers these issues to be included in modern awards.

Anderson Gray will keep you updated as the Commission moves forward with this important issue. We are lawyers for employees and are here to help you.

If you are experiencing family or domestic violence contact Anderson Gray Lawyers, they are the national sexual assault, domestic family violence counselling service.

working overtime questions

Working Overtime? What are your Rights?

By | Unfair Dismissal

Know Your Rights with Overtime Work

Your employer has asked you to stay back to work a few more additional hours this week – can they do this?

Your employer can request that you work overtime, but only if it is reasonable in the circumstances.

The maximum weekly hours of a full-time employee are 38 hours per week. The maximum number of hours of an employee who is not a full-time employee is the employee’s ordinary number of hours per week, which also must be less than 38 hours.

Overtime is the work that you perform for your employer that is:

  • over your ordinary hours of work (such as over 38 hours);
  • beyond your agreed upon number of hours; and/or
  • outside the spread of ordinary hours. This is the hours in the day that your ordinary hours can be worked.  These are set out in your applicable award (such as between 8:00am and 6:00pm).

To determine whether overtime is reasonable includes the following considerations:

  • if there is a risk to your health and safety;
  • your personal circumstances and family responsibility;
  • the operational needs of your workplace;
  • whether you are entitled to receive compensation such as overtime rates and penalty rates for working overtime;
  • the nature of your role and level of responsibility;
  • how much notice is given to you by your employer; and
  • how much notice you give your employer that you cannot work the overtime (if you refuse).

If an award applies to your employment or an enterprise agreement, this instrument will set out the applicable overtime rates or penalty rates that are to be paid to you and when these payments apply.  Make sure you review the instrument that applies to you to ensure you know the applicable rates of pay.  Even if you have an individual contract of employment and it does not say anything about an award, this does not mean that an award does not apply to you.  So it is a good idea, to check what award may apply to your employment to make sure that you know your minimum entitlements.

You may have an employer that pays you above the minimum rate of pay set out in the applicable award.  However, this does not mean that you are not entitled to receive additional payments for overtime.  There are certain rules for ‘all-inclusive’ rates of pay that your employer must implement.  If your employer has not set out in writing what exactly is included in your rate of pay, then you may be entitled to a separate payment for any overtime worked despite the above award rate of pay paid to you.

If you are not sure about your entitlements, do not hesitate to contact Anderson Gray, we are lawyers for employees and are here to help you.

unfair dismissal reasons

What is a Fair Reason for Dismissal?

By | Unfair Dismissal

Your boss has just fired you – was the reason for your employment being terminated by your employer fair?

An employer cannot dismiss an employee without a valid reason.  The reason must be sound and well founded, not fickle, fanciful or prejudiced.

If the reason your employer dismissed you is valid and your employer undertook a fair and reasonable process in managing your dismissal, by (for example) notifying you of the reason for your dismissal and giving you an opportunity to respond to the reason, then this may amount to your dismissal being fair.  However, no case should be determined without considering all of the facts and circumstances relating to the matter.  If you would like to discuss your situation with an unfair dismissal expert, contact Anderson Gray Lawyers today and tell us your story.  We are here to help.

A valid reason for dismissal may relate to an employee’s conduct, capacity, performance or redundancy.

Conduct

Conduct of an employee that may amount to misconduct, is behaviour of an employee that is not appropriate at the workplace or in breach of the employee’s contract of employment.  The following are a few examples of what may constitute misconduct:

  • breaching a company policy;
  • engaging in an activity that poses a serious risk to the health and safety of a person or to the reputation or viability of the business;
  • being dishonest;
  • having a poor attitude and engaging in poor behaviour towards your employer and/or other employees whilst at work;
  • failure to follow a lawful and reasonable direction given by your employer;
  • being intoxicated at work;
  • stealing; or
  • fighting or assaulting another person at work.

However, each individual circumstance is different.  It depends on the nature of the conduct in the particular circumstances and the employee’s history as to whether the conduct in question is a valid reason to terminate the employee’s employment.

Just because you have engaged in the above conduct, does not always mean that dismissal was the right answer or that the dismissal was fair.

Capacity

Capacity refers to the employee’s ability to do the job required by their employer and the work they were employed to do, that is, the ‘inherent requirements’ of their position of employment.

If you are unable to perform the inherent requirements of your role, then that may be a valid reason to terminate your employment.

Incapacity may be due to a medical reason and the medical reason means that you are unable to perform the requirements of your role. However, the Fair Work Act does provide protections for employees.  Your employer cannot dismiss you if you have been temporarily absent from work due to an illness or injury for up to a three month period (or up to three months in total over a 12 month period) or if you are absent on paid personal/carer’s leave for the duration of your absence from work.

This area of the law is complex.  If you have been dismissed for incapacity, please contact Anderson Gray Lawyers to discuss your situation and if you may have the grounds to lodge a claim.

Performance

An employee may be dismissed from their job for poor performance.  Generally, poor performance is when an employee has not been performing their role to a satisfactory standard.

If you have been under-performing in your role, this may be a valid reason for dismissal.  Nevertheless, you ought to have been warned about your poor performance by your employer and be notified of the need for you to improve your performance prior to your dismissal.  Generally, when determining an application for unfair dismissal, the Fair Work Commission likes to see that you have been given a period of time in which to improve your performance.  If you have not been warned that your performance at work is sub-standard and given a chance to improve your performance, then this may not be a valid or fair reason for terminating your employment.

Redundancy

If your position of employment was made redundant, this will be a fair reason if the redundancy was ‘genuine’.

The Fair Work Act provides that a redundancy is a genuine redundancy if:

  • your employer no longer requires your job to be performed by anyone due to operational changes in your workplace;
  • your employer consulted with you about the proposed redundancy. That is, discussed with you the proposed change (i.e. making your position of employment redundant) and if there were any alternative options or ways to minimise the adverse effect of this change on you; and
  • it was not possible to re-deploy you into another job in the business or an associated entity of your employer.

The Process

Despite the reason for dismissal, it is important to note that the process adopted by your employer in managing your employment must also be fair.  That is, you must be notified of the reason for your dismissal, given an opportunity to respond, permitted a support person (if you request one) to assist you at any meetings relating to your dismissal and warned about your poor performance (if your dismissal relates to your performance).

Anderson Gray Lawyers are unfair dismissal experts and we are here to help.  If you think that the reason you were dismissed was not fair – do not delay, contact us immediately!  Remember that you have 21 days in which to lodge an application for unfair dismissal with the Fair Work Commission from the date your dismissal took effect.