Discrimination round-up

Cases

Discrimination round-up

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The discrimination cases summarised, highlight the pro-active role required by employers.

Culture of harassment condemned

The NSW IRC stated that it was insufficient for an employer to simply explain employees’ rights and confirm a policy of equal opportunity to avoid blame when allegations of discrimination and harassment arise. 

Active and material steps have to be taken to create an appropriate work culture. This message was conveyed in the rejection of a court officer’s application for unfair dismissal.

The Commission found that the employee had a history (over more than two years) of sexually harassing one female colleague in particular; and participating in a culture pre-occupied with sex - ribald jokes, sexual innuendo, the sex lives of officers, inappropriate behaviour with sexual connotations and sexual harassment and discrimination.

Background

The workplace was the Downing Centre Court complex in Sydney. The employee was employed as a sheriff's officer (with the rank of sergeant) in the Sheriff's Office of New South Wales.

There had been criminal charges laid against the employee over some of the incidents in issue. This prosecution was partly successful in relation to the incidents that included inappropriate touching, propositioning, threats and coarse language.

The employee argued that there was insufficient proof of the incidents alleged.

Application dismissed

Justice Boland found the evidence against the employee was sufficiently established.

The judge echoed the magistrate who had heard the criminal charges and reinforced the need for positive action from the employer:

‘…"It is all very well to call a meeting and it is all very well even to investigate one or two people, but what is actually done to stop the behaviour at the workface I do not know, but nothing much it appears if you can go around doing this sort of thing."

'The culture that Magistrate Dillon was referring to was one that seemed to have a pre-occupation with sex - ribald jokes, sexual innuendo, the sex lives of officers, inappropriate behaviour with sexual connotations and, of course, sexual harassment and discrimination. It was variously described as a "male culture" and a "blokey culture" but it seems to me, as the Magistrate observed, that female officers also participated in producing what must have been an unpleasant and probably intimidating environment at the Downing Centre, at least for new recruits.

'…The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. 

'The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.

The judge continued:

‘No one should have to put up with that behaviour. It may also have been the case, if earlier remedial steps had been taken, that [the employee's] propensity to harass his co-workers would have come to the relevant senior person's attention and he could have been counselled about the inappropriateness of his conduct. If so, he may have still been in his employment as a sheriff's officer today.’

The application was dismissed.

See: Coughran v Public Employment Office/Attorney General's Department [2003] NSWIRComm 181 - IRC (NSW) - Boland J - (10 June 2003).

Sight disability was basis of discrimination

A fireman was awarded damages as a result of discrimination he suffered in not being promoted or considered for additional training on the basis that he had only one eye.

The NSW Administrative Appeals Tribunal found that the employer failed to establish that the positions that the employee was interested in required a fully sighted person.

An appeal is pending from this decision.

Conclusions

The Tribunal found against the employer:

‘…The employer discriminated against the employee on the ground of his disability, firstly, by re-deploying the employee in a non-operational position in which he was denied the training and promotional opportunities afforded to other firefighters at his rank and, secondly, by affording him as non-operational firefighter no training and promotional opportunities which were equivalent to those afforded to operational firefighters.

'We are satisfied that the employee would have progressed to the ranks of Firefighter Level 4 and Qualified Firefighter had the unlawful discrimination not taken place.

'There is clear authority for the proposition that the Tribunal may award damages for non-economic loss in order to compensate the employee for damage, such as distress, insult and humiliation, which he suffered by reason of the employer's conduct.

'In the circumstances we believe that the fairest and most sensible order to make is that henceforth the employee should receive the rate of pay and other remuneration of a Qualified Firefighter until he ceases employment with the employer or is promoted to a higher rank.

Observations

'In order to determine whether a person can perform the inherent requirements of any particular employment it is necessary to first determine the precise content of that employment.

'The capacity to perform those characteristic or essential requirements without unreasonable risks to the safety of others is an inherent requirement of any employment. In order to determine whether those risks are unreasonable it is necessary for the employer to consider the degree of risk to others and the seriousness of the risk.

'In this case it appears that no real effort was made by the employer to comprehensively identify the characteristic or essential requirements of the employment of an operational firefighter.

'…Once having determined the "inherent requirements" of the particular employment it was necessary for the employer to demonstrate that he had turned his mind to both limbs of the "inherent requirements" exception; they are, (1) whether the employee was unable to perform the inherent requirements of the particular employment without assistance and, (2) if that be so, whether it would be unjustifiably harsh to expect the employer to provide that assistance.

'It may be that given the employer's disability, and the nature of the inherent requirements of an operational firefighter, that it was not possible to provide him with any services or facilities which would have permitted him to have performed those requirements with increased safety. But, in circumstances where the inherent requirements exception is applicable, the employer must demonstrate that it has at least considered this issue.’

The decision of the Tribunal was that the complaint was substantiated.

See: Lavery v Commissioner of Fire Brigades [2003] NSWADT 93 - Rees N, Judicial Member; Silva A, Member; Nemeth de Bikal L, Member - 6 May 2003 and 12 June 2003.

AMWU officials alleging discrimination refused interim injunction

The Federal Court refused to grant an interim injunction to put on hold the dismissal of two union officials employed as boiler-makers.

Although the court found that there was evidence sufficient to run the case, the balance of convenience told against the employee's submissions for an interim injunction.

Background

The employees sought declarations that the first respondent ('MRE') had contravened s298K of the Workplace Relations Act 1996 by refusing to employ the second and third applicants, Mr Cook and Mr Marshall, for a prohibited reason namely that each has been a delegate of the first applicant ('the AMWU').

The employer and union parties had agreed to conclude a certified agreement in respect of work to be performed in the construction of a new hydrogen desulphurisation ('HDS') plant at the oil refinery operated at Geelong by Shell Refining (Australia) Pty Ltd ('Shell').

In consideration of the AMWU's entering into that certified agreement MRE, which had been engaged as a labour hire company to employ workers on the HDS plant, allegedly agreed to employ Mr Cook and Mr Marshall as boilermakers on the site where they would be AMWU job delegates.

The evidence disclosed that MRE was being pressed by Shell to conclude a certified agreement with the AMWU before work began on the HDS plant.

The AMWU insisted that two of its nominees, Mr Marshall and Mr Cook, should be employed at the site in order to become union delegates or shop stewards. The undertaking given had been confirmed by facsimile. The two nominees were not employed.

Balance of convenience and other discretionary considerations

Justice Ryan concluded:

‘Despite my conclusion that there is a serious question to be tried, I have not been persuaded, on the balance of convenience and having regard to other discretionary considerations, to order MRE to employ Mr Cook on the HDS site until the hearing and determination of this action or further order.

'There is no suggestion that inability to undertake employment in that period, even if it were total, would irreparably or significantly impair Mr Cook's skills as a boilermaker.

'Any stigma which he might attract as a result of MRE's refusal to employ him would be slight and largely, if not entirely, dispelled by the imposition of a penalty and an appropriate order for compensation against MRE.

'I have not lost sight of the interests of the AMWU itself and its contention that to refuse an interlocutory injunction would "send a signal" that employers can, with impunity, "black list" former or prospective union delegates. However, as I have just indicated, considerations of that kind are counteracted by the reflection that, if it fails at trial, MRE will be liable to substantial penalties and, if it is not ordered to employ Mr Cook, to pay compensation without having had the benefit of his labour.

'Moreover, the evidence indicates that AMWU members presently working on the HDS site have elected job delegates and there is no suggestion that the industrial representation afforded to them has been impaired by Mr Cook's inability to undertake that role. 

'On the other hand, the respondents have not suggested that there are no present vacancies for boilermakers or that any existing employees would have to be dismissed to permit Mr Cook to be employed without economic detriment to MRE.’

The Court gave directions to afford a speedy final trial - to occur on 30 June and 1 July and, if necessary, to continue from 8 July until concluded.

See: Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Maintenance Resource Engineering Pty Ltd - Fed. Ct (Ryan J) - 6 June 2003.

 

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