While the bargaining and safety net changes introduced by the Fair Work Act 2009 (Cth) stole much of the limelight in 2009, the past year also saw significant developments in Equal Employment and Opportunity law.
We discussed changes to the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth) in detail in our last edition. In this issue, we look at the introduction of alternative options for employees in responding to alleged discrimination and adverse action under the Fair Work Act 2009 (FW Act) and a number of significant decisions both here and overseas.
'ADVERSE ACTION' – JONES v QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD
The 'adverse action' provisions of the FW Act open up significant new options for employees, making it easier for them to bring successful claims of workplace discrimination. One of the first cases to use these protections was heard in the Federal Court of Australia on 25 November 2009 in Jones v Queensland Tertiary Admissions Centre Ltd  FCA 1382. The case saw a senior employee successfully obtain an interlocutory injunction preventing her dismissal which the employer had based on bullying and harassment allegations. The injunction stopped the company from terminating or otherwise injuring her in her employment until the final determination of the matter.
Ms Jones had been the CEO of the Queensland Tertiary Admissions Centre (QTAC) since 2002. From early 2009, she was QTAC's main negotiator in the bargaining process for a new enterprise agreement. In late 2009, a number of staff and the Australian Services Union (ASU) made complaints about Ms Jones' conduct during the negotiations. QTAC commissioned an independent investigation, and afterwards wrote to Ms Jones suggesting that evidence existed of bullying, which could lead to her termination if substantiated.
Ms Jones claimed that as a bargaining representative of QTAC, she had a role or responsibility under a workplace law (section 341(1)(a)), and thus had a 'workplace right'. Under section 340(1), a person is prohibited from taking adverse action against another person because the other person has a workplace right. Adverse action includes threatening to, or actually doing any of the following: dismissing the employee; injuring the employee in his or her employment; or altering the position of the employee to his or her prejudice.
Justice Collier found that there was a serious question to be tried as to whether Ms Jones had been the subject of adverse action. Her Honour concluded that it was arguable that commencing an investigation of Ms Jones, and publicising the existence of the investigation, had been prejudicial to her position as an employee, particularly because of the potential harm to her reputation. In addition, Justice Collier accepted that a proposed meeting to discuss her employment was sufficient to make out a prima facie case that QTAC had threatened to terminate her employment. The necessary link between her participation in the enterprise agreement negotiations (the workplace right) and the adverse action, was sufficiently demonstrated (for the purposes of an injunction) by the fact that the allegations were made against her by the ASU, at the time of the negotiations.
The case shows that the adverse action laws can potentially shield executives, as well as employees during a bargaining period. This means that employers must be cautious in their treatment of employees, including executives, who are exercising a workplace right under the FW Act. This is the case even where there are concerns about the employee's performance.
These issues are likely to be further clarified if the case goes to final hearing.
LESSONS FROM other RECENT CASES
The general protections are a key part of the new laws, and the Fair Work Ombudsman has inspectors who are overseeing these provisions. These inspectors have the power to investigate claims of discrimination in an employer's workplace and demand the production of documents. Below are some quick tips on how to ensure your workplace is well equipped to handle discrimination and harassment complaints.
Clear and well established policies and procedures
As we noted last year, the significant payment (over $500,000 in damages and costs) in the Federal Court decision of Poniatowska v Hickinbotham  FCA 680 reminds employers of the need to ensure their policies are not only in place and communicated, but that processes for dealing with complaints are also well understood.
In Sharma v QSR Pty Ltd t/as KFC Punchbowl  NSWADT 166 the Full Bench of the Administrative Decisions Tribunal found that whilst the employer had a policy on sexual harassment and provided training to its employees, it did little to ensure the policy was enforced. The decision proves that employers' obligations go beyond having a policy and conducting training - employers must also have procedures in place that are followed when an incident occurs. Having managers who are vigilant and who will enforce policies is critical.
Undertaking an investigation
AWU NSW (on behalf of Grahovac) v BlueScope Steel  NSWIRC 86 put the spotlight on when and how employers should investigate incidents after being made aware of potential unlawful conduct. We typically advise employers that they should undertake an investigation into a matter once they become aware of conduct that potentially breaches their policies and threatens to undermine the obligations they have to their employees to provide a safe workplace. This was the view of the NSW Industrial Relations Commission in the BlueScope Steel case.
Following an internal investigation, BlueScope Steel found that an employee had harassed a fellow employee, by hugging her and kissing her on the neck. Whilst the employee being investigated argued that the investigation had gone too far because the complainant did not want a full investigation so as to avoid jeopardising the employee's employment, the Commission held that the supervisor's decision to formally investigate the matter was the right one. Deputy President Grayson stated as follows:
This however was not the only challenge faced by the employer in this case; there were also no witnesses to the event at the centre of the complaint. Employers often face the difficult situation of having to make a decision about what occurred and who is telling the truth, in the absence of any witness evidence. Despite the arguments brought by the applicant, the Commission held that 'although there is no evidence provided by witnesses that can corroborate her allegations, on the balance of probability, it is more likely that [the pump house attendant] did both hug and kiss [the employee]...as alleged.'
The lesson to be taken from this case is that despite a complainant's request not to formally investigate a complaint of harassment or discrimination, employers should be committed to maintaining a safe work environment for its employees, and follow its policies and procedures in carrying out an investigation.
BELIEF IN CLIMATE CHANGE - 'A PHILOSOPHICAL BELIEF' PROTECTED BY UK LAWS
Australian discrimination laws protect employees from discrimination on the basis of religious belief. Our colleagues at DLA Piper recently updated us on UK developments in this area pointing to a possible new type of discrimination claim.
In Grainger Plc v Nicholson UKEAT/219/09;  WLR (D) 315, the UK Employment Appeal Tribunal accepted that a belief in man-made climate change is capable of being a philosophical belief for the purposes of the UK Employment Equality (Religion or Belief) Regulations 2003 (Religion/Belief Regulations).
In this case Mr Nicholson was employed by Grainger Plc until his dismissal in July 2008. Grainger claimed that Mr Nicholson's employment was terminated on grounds of redundancy. However, Mr Nicholson claimed that his dismissal was unfair and that he was discriminated against contrary to the Religion/Belief Regulations because of his asserted philosophical belief about climate change and the environment. Mr Nicholson's argued that his belief was, 'not merely an opinion but a philosophical belief', which affected how he lived his life, including his choice of home, how he travelled, what he bought, what he ate and drank, and what his hopes and fears were.
The employment tribunal considered whether Mr Nicholson's belief was protected under the Religion/Belief Regulations. The employment tribunal's judgment appeared to indicate that Mr Nicholson's beliefs were or amounted to a philosophical belief within the Religion/Belief Regulations.
At the employment appeal tribunal (EAT), Mr Nicholson's representatives articulated his belief as 'the philosophical belief that mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this disaster for the benefit of future generations and to persuade others to do the same'.
The EAT said that it was necessary in order for the belief to be protected, for it to have a similar status or cogency to a religious belief. However, it was not a bar to protection by the Religion/Belief Regulations if the belief is a 'one-off belief' and not shared by others. The EAT also went on to say that there was nothing which would disqualify a belief based on a political philosophy. It said that if Mr Nicholson was successful in establishing his belief, it was likely to be characterised as a political belief.
The EAT therefore upheld the decision of the employment tribunal.
Jonathan Exten-Wright, a DLA Piper Partner in London noted that the judgment sits uneasily with the provisions proposed by the UK Government for the new Equality Bill due to come into force this year. Although the new provisions mirror the existing Religion/Belief Regulations, stating that 'belief means any religious or philosophical belief', the explanatory notes expressly state that 'political belief and beliefs in scientific theories are not religious or philosophical beliefs'. Although not binding, the explanatory notes are clearly at odds with the interpretation of the meaning of 'philosophical belief' in this case. An article in the Daily Mail on this subject with comments from Jonathan Exten-Wright is available at http://www.dailymail.co.uk/news/article-1224961/Greenviews-
ASX CORPORATE GOVERNANCE COUNCIL REQUIREMENT FOR DIVERSITY FOR LISTED COMPANIES
In another important development, late last year the Australian Stock Exchange (ASX) Corporate Governance Council issued its new requirements around diversity for listed companies. The anticipated implementation date for these changes is the financial year commencing 1 July 2010.
The ASX proposes to require each entity listed on the ASX, on an 'if not, why not' basis, to adopt and disclose a diversity policy that includes measurable objectives relating to gender.
The new recommendations require listed companies to:
- Establish a diversity policy, to be disclosed to the market in full or in summary.
- Disclose in their annual reports their achievement against the gender objectives.
- Disclose in their annual reports the proportion of women employees in the whole organisation, in senior management and on the board.
The proposed changes address the issue of transparency around targets concerning the percentage of women in senior positions. The changes do not require listed entities to employ set proportions or percentages of women in senior positions within the entity.
For those listed companies who have not yet taken these steps, the development of a policy with measurable targets should be a priority issue for the first part of 2010. This will involve bench-marking where your organisation is today and setting lawful objectives on diversity.
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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.