CASE STUDIES

Complaint Lacking in Substance | Race Discrimination | Sex Discrimination | Sexual Harassment

COMPLAINT LACKING IN SUBSTANCE

The complainant was an employee with a major firm. He initially lodged a complaint alleging discrimination on the basis of   ‘trade union activity’ and also lodged an application in the Industrial Relations Commission (IRC) seeking reinstatement, following dismissal. Although he subsequently settled his action before the IRC, he elected to continue with his discrimination complaint.

The complainant genuinely believed that he had been dismissed on the basis of ‘trade union activity’ but could not substantiate the complaint. He simply asserted that his dismissal had followed management’s awareness of his enquiries regarding union membership and award wage entitlements. He could not, however, provide the names of any witnesses nor could he provide any evidence indicating causality between his enquiries, management’s knowledge of those enquiries and his termination.

The Commission wrote to the respondent employer who documented, in turn, a chronic history of inter-personal conflict between the complainant and staff, a substantial history of absenteeism, and records of numerous ‘nuisance’ and abusive phone calls.

Midway through the Commission’s investigations, the complainant lodged a supplementary complaint alleging discrimination on the basis of ‘impairment’. Again, the complaint was unable to be substantiated. In all the circumstances, the Commission was unable to conclude that a ‘substantial reason’ - to use the words of s10(4) of the Act - in dismissing the complaint was on the basis of either ‘trade union activity’ or ‘impairment’.

The complainant was formally notified that the Commission would be refusing to accept the complaint of ‘impairment’ discrimination and would be lapsing the ‘trade union activity’ complaint. The complaint file was subsequently closed.

RACE DISCRIMINATION - PRE WORK

An Aboriginal woman with considerable experience in the hospitality industry was interviewed for a full-time receptionist position with a local hotel. The woman had previously been employed as a receptionist in a five star hotel at a resort.

The woman became concerned when, after being informed that she was unsuccessful in her application, saw the same position being advertised again a week later. She became suspicious about the interview, as she believed she had all the experience and skills necessary to do the job, and further was told by her previous employer that he had provided a glowing reference of her work performance.

She contacted the hotel for an explanation but could not get one. The woman then decided to lodge a complaint of discrimination on the ground of race, as she alleged she thought the interviewer displayed surprise that she was Aboriginal when she attended the interview.

In conciliation, the hotel paid her compensation of $1000 for hurt and humiliation, provided a written apology, and agreed to include an equal employment opportunity (EEO) reference in their advertising, and to incorporate EEO principles in future interviews for jobs.

SEX DISCRIMINATION - EMPLOYMENT

A woman who had been employed in the office of a water transport business for a number of years, decided to seek employment with the same company as a deck-hand. She expressed long-term plans to gain a Captain’s license. The company employed a number of female drivers but no deck-hands.

She alleged she was made to feel unwelcome by her male co-workers who commented to her that the work would be too heavy and dirty for her. The male co-workers conceded over time that she was able to perform the duties of the position as well as they could.

Because of a down-turn in business the company was forced to remove a service which resulted in a reduction of work hours for deck-hands. As a consequence her rostered water-time was shortened, resulting in loss of hours, loss of training and career opportunities. She alleged complaints by her and her Union to the company of unfairness in favouring male staff in the rostering times were ignored. She alleged that this caused her great personal frustration and led to her forced resignation.

In conciliation the company conceded that there were no female deck-hands and that comments were made about the work being too heavy and dirty. The complaint was settled at conciliation with payment of $12,000 compensation, a written apology and agreement that the company undertake training on anti-discrimination.

SEXUAL HARASSMENT AND LAWFUL SEXUAL ACTIVITY - EMPLOYMENT

A woman alleged that her employers and several co-workers had sexually harassed and discriminated against her on the grounds of her lawful sexual activity. Her partner also lodged a complaint on the basis of association. The alleged harassment and discrimination occurred in a heavily institutionalised work environment.

The Commission made contact by letter and then meetings were arranged with individual respondents at the work site to quickly establish the Commission’s role and processes to be used. A significant amount of time was spent in preparation of parties by reality testing, dispelling rumour and exploring the options of structuring the conciliation conferences on the day. It became evident that other issues outside the jurisdiction of the Commission were also involved in the complaint.

It was decided by the two conciliators to run three separate conciliation conferences on the day to assist in dividing the relevant issues and to balance numbers. The outcome resulted in various verbal understandings and three written conciliation agreements which included sexual harassment and anti-discrimination training for staff on a yearly basis.

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