Discrimination - cases wrap (4)

Cases

Discrimination - cases wrap (4)

Discrimination law is still very much a live issue under WorkChoices. Unlawful dismissal actions can be brought against any employer and the most common ground for an unlawful dismissal action is a ground of discrimination. The six cases here note: be proactive against harassment; love and harassment; attempt to disguise 'pregnancy' dismissal; sins of son borne by father; employer not liable as apology saved the day; and no malice - no blame.

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Discrimination law is still very much a live issue under WorkChoices. Unlawful dismissal actions can be brought against any employer and the most common ground for an unlawful dismissal action is a ground of discrimination. The six cases here note: be proactive against harassment; love and harassment; attempt to disguise 'pregnancy' dismissal; sins of son borne by father; employer not liable as apology saved the day; and no malice - no blame.

Be proactive against harassment

The burden of proof is on an employer to show it took reasonable pro-active steps to prevent harassment. The Qld Anti-Discrimination Tribunal confirmed that waiting to act in response to formal harassment complaint is acting too late.

Employers should not wait for a formal complaint. Proactive anticipatory steps are required to prevent harassment and avoid prosecution.
In this case the employee-complainant was subjected to numerous instances of sexual harassment including unwanted touching, leering, sexual innuendo and causing emails to be sent to her from pornographic websites. When, on a formal or an informal level, the employer is aware that potentially harassing conduct is occurring, the employer is on notice and should act to stop it.

The complainant was awarded $4,665 in compensation.

Webb v State of Queensland [2006], the Complainant, Rosalee Webb

Love and harassment

'Falling in love' implicitly suggests request for sexual favours. When the employer exerted other pressures like a pay cut, excessive work and the like, this confirmed the harassing nature of the advances. The Queensland Anti-Discrimination Tribunal found that a declaration of love can constitute sexual harassment in these circumstances.

Evidence showed that during the complainant's employment Mr S, her employer, asked her a number of questions about her personal life. The employer also gave her flowers on numerous occasions before telling her 'I'm falling in love with you …'

The Tribunal found that implicitly in this declaration was an unsolicited request for sexual favours.

The Tribunal found there was no intention on the part of Mr S to offend, humiliate or intimidate so it was a question of whether a reasonable person would have anticipated the possibility that Ms K would be offended, humiliated or intimidated by the conduct.

The evidence substantiated the case that a reasonable person would feel offended or intimidated in the circumstances.

The tribunal awarded $2,000 in damages.

K v S and N Company - Qld Anti-Discrimination Tribunal - 05/04/06

Attempt to disguise 'pregnancy' dismissal

Disguising the true reasons for dismissal (ie pregnancy) did not avoid prosecution. The NSW IRC ordered $20,300 compensation for a property company employee who was dismissed because she was pregnant.

Commissioner McLeay said on the evidence the only reason for the secretary's dismissal was her pregnancy.

Raftery and KMPB Group Pty Ltd [2006] NSWIRComm 1053 -03/06

Sins of son borne by father

Permitting his son to abuse access to his work computer was a breach of university policy by a lecturer resulting in dismissal. The dismissal of the father from his university position was upheld as the employee should not have allowed a breach of policy.

Pornography and MP3 files stored on a senior lecturer's work computer at home constituted major breaches of the university's internet and communications technology policy.

The AIRC accepted the son's evidence that his father did not allow him to access pornography on the computer. But it held even in the absence of a login warning, the employer's policies still applied and did not allow the computer to be used for non-university-related activities. The Commission concluded there was a valid reason for the termination.

Christos v Curtin University of Technology -AIRC - PR970172 - 22/3/06

Employer not liable - apology saved the day

The NSWADT found a golf club was not liable for remarks by certain club officials, because the club president had made it clear the remarks were unacceptable and instructed the offenders to apologise.

The Tribunal found the club had not victimised the complainant after she had lodged the claim.

Brown v Richmond Golf Club & Anor [2006], NSWADT 104 - 07/04/06

No malice - no blame

Reasonable and justifiable belief can override a discriminatory act if the employer was wrong in assessment of the circumstances. The applicant was uncooperative and the employer's misunderstanding of the applicant's illness was justified.

The tribunal pointed to: the applicant's behaviour leading to suspension and disciplinary action; the applicant refused to perform new duties allegedly due to vision problems; the applicant refused a direction to attend work due to asserted medical condition; the employer did not know at the time about the applicant's bi-polar disorder and keratoconus.

Hollingdale v North Coast Area Health Service [2006] FMCA 5 (20 January 2006) - Driver FM

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