Discrimination — employers' vigilance at issue

Cases

Discrimination — employers' vigilance at issue

Two cases noted highlight: employers need to be alert to employees' complaints about discrimination; and employers will be supported by courts and tribunals when they take firm action against discriminatory behaviour.

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Two cases noted highlight: employers need to be alert to employees' complaints about discrimination; and employers will be supported by courts and tribunals when they take firm action against discriminatory behaviour.

Unfair work allocation and disregard of complaints

The employer failed in three respects: lack of training for the applicant; unfair allocation of work; and allowing the viewing of pornography in the office.

The NSW Administrative Decisions Tribunal found the applicant had been discriminated against and awarded $6,825, stating:

'The Tribunal accepts the assertive approach which the applicant took in the workplace was not liked, and that she was punished as a result. …

The Tribunal finds that ... pornography - whether downloaded by night-shift or other employees - was available and on screens during Ms Thompson’s shift. The list of discriminatory treatment is set out in the previous section of this decision.

… The unfair allocation of work is the most serious of the breaches. This was a continuous issue for Ms Thompson in the three areas detailed. It appears to have impacted on her during most, if not all, of the shifts she worked in the period under review. When giving evidence it was clear that she is a strong person, and the ongoing impact did not show major detrimental effects. …

The story of this case is a common but unfortunate one. Ms Thompson, an assertive woman who is prepared to stand up for her rights, has been punished as a result.

Such treatment reflects poorly on both the supervisors and managers of the respondent. It is hoped that this decision will provide a salutary lesson, and discourage such treatment of individuals in the future.'

Thompson v Courier Newspaper Pty Ltd [2005] NSWADT 49 (7 March 2005)
 
Security of costs defeated employee's defence to policy breach

The AIRC refused to hear an employee's case for unfair dismissal when she was unable to lodge over $7,000 as security of costs to cover the employer's costs if the case was eventually lost.

The applicant was accused of sending offensive and inappropriate emails to colleagues.

Commissioner Richards had reservations about the equality and presentation of the applicant's case:

'The applicant's principal claim is that the emails she admits to having stored and\or distributed (one which allegedly reveals a semi-naked person who had undergone gender re-assignment) were not pornographic in content, and therefore did offend against the respondent's "acceptable use" email policy (which appears to use "pornographic" as an example of unacceptable use).

Ms Lis admits to either storing and\or sending images that included the genitalia of naked men and\or women, which she considered to be "unique" or "weird".

Ms Lis further contends, amongst other things, that the respondent's workplace culture and practices were either indifferent to usage patterns in relation to email or otherwise complicit there-in.

The evidentiary foundation for the applicant's claims, prima facie, is wanting at this point, though Ms Lis has summonsed a single witness and sought the production of certain documents from her previous employer relating to email policy.

… The applicant has conceded she was aware of the respondent's Total Computer Environment Policy.

… The applicant is aware that other of the respondent's employees have had their employment terminated for breaches of the Total Computer Environment Policy. ....

There are no developed or comprehensive submissions or available evidence that would tend to suggest at this point that Ms Lis has a sustainable case, let alone one that may yield an outcome from which she is able to derive any appreciable relief.'

Dominika Lis v Suncorp Metway Staff Pty Ltd. PR955459 (3 February 2005)

Dominika Lis v Suncorp Metway Staff Pty Ltd. PR956250 (4 March 2005)

Related
Controlling internet/email misuse - what can employers do?


 

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