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Stories about discriminatory conduct and alleged discrimination in the workplace
Employee spied on, publicly humiliated and segregated a young WA mining worker who claims he has been spied on, publicly humiliated and segregated from his colleagues, forced to spend his shift picking up rubbish, because he continued to raise onsite safety concerns. [MORE] Shipping company fined $180,000 for discriminatory conduct . Shipping company Patrick Stevedoring has been convicted and fined $180,000 after the company was found guilty of discriminating against a worker who raised safety concerns about loading cargo. [MORE] High Tea food allergy discrimination allegation found to be a tall order A disability discrimination claim brought by a woman suffering from food allergies was summarily dismissed by the Federal Magistrates Court on the basis that her claim had no reasonable prospect of success. [MORE]
Employee 'spied on, publicly humiliated, segregated' The Sydney Morning Herald recently carried a story about a young WA mining worker who claims he has been spied on, publicly humiliated and segregated from his colleagues, forced to spend his shift picking up rubbish, because he continued to raise onsite safety concerns. The electrician, who worked in the Pilbara, is taking his claim to Fair Work Australia. “I was put nearly a kilometre away from the rest of the workforce. I'm an electrician and I was given the job of picking up rubbish. I was told that would teach me to keep my mouth shut.” He alleges he suffered six weeks of intimidation and bullying before he was finally woken at 5am on a Sunday morning and ordered to immediately leave the workers' accommodation and take the first flight to Perth. "It was Sunday so the only flight was from Newman, 3 hours away," the man, who is aged in his 20s and has requested anonymity, said. "They dropped me off at a closed airport and made me wait three hours." He claims the bullying started after he raised safety concerns and asked for an occupational health and safety supervisor to be appointed. "Ten minutes later I was called into the office and interrogated by three superintendents," he said. "From there I spoke up at a toolbox meeting - an open forum with workers on site. "The next day I was put nearly a kilometre away from the rest of the entire workforce. I'm an electrician and I was given the job of picking up rubbish and sorting out cable drums. I was told that would teach me to keep my mouth shut. I did that for a week. The worker said that harassment was prevalent on mining sites, where companies were reluctant to spend money on safety. International workers on 457 visas and young employees suffered the most, he said, and they rarely spoke out. Shipping company fined $180,000 for discriminatory conduct .Shipping company Patrick Stevedoring has been convicted and fined $180,000 after the company was found guilty of discriminating against a worker who raised safety concerns about loading cargo. Victorian Magistrate Rosemary Carlin found a Patrick unit manager at a Geelong wharf suspended and threatened to sack the experienced stevedore - who was also an elected health and safety representative - for "the dominant reason that he raised a health and safety concern". In 2007 the stevedore resisted the implementation of a new method (known as basket lifting) for unloading steel from vessels because he and other safety representatives were unfamiliar with. The company's OHS committee had not been consulted before it was introduced - as was required under safety laws. When the stevedore was observed employing the old unloading method he was accused by the manager of failing to follow a "lawful" instruction, and suspended. Patrick was subsequently charged with breaching s76 (prohibition on discrimination) of the Victorian Occupational Health and Safety Act 2004. This is the first discrimination prosecution since the introduction of new workplace health and safety laws in 2004. The company pleaded not guilty, but was convicted on three of the five charges laid against it. The case was the first discrimination conviction under the Act, and sends a clear message to all employers that such conduct is unacceptable. Protecting yourself and your co-workers by raising health and safety matters at work isn't just a right, it's a necessity. The NSW WHS Act 2011 has a similar restriction against discriminatory conduct. Clause 104 of the Act, “Prohibition of discriminatory conduct” provides for a maximum penalty of $500,000 for a corporation convicted of discriminatory conduct.
High Tea food allergy discrimination allegation found to be a tall orderA disability discrimination claim brought by a woman suffering from food allergies was summarily dismissed by the Federal Magistrates Court on the basis that her claim had no reasonable prospect of success. The applicant was a member of the Industrial Relations Society of Queensland (IRSQ) and was keen to attend a 'Women in IR High Tea' fundraiser (High Tea), but not so keen on paying the full price of the ticket. She asked to attend for free on the basis that, because of her life threatening food allergies, she would only be drinking water, orange juice and Sprite.
The IRSQ vice president said 'no' because the $50 price tag covered more The applicant claimed that the vice president should have allowed her in for free because as soon as a fee was charged, the vice president – knowing that the applicant was unable to eat - had unlawfully discriminated against her by placing her in a less advantageous position than those who could eat as many scones with jam and cream as they wanted. Not only did the Federal Magistrate disagree that the applicant had been treated less favourably than those at the High Tea without the disability, he found that the applicant's claim did not trigger the provisions of the Disability Discrimination Act 1992 (Cth) (DD Act). This is because discrimination under the DD Act is not actionable per se. It is only actionable if it occurs within an identifiable environment or in identifiable circumstances that are stated by the DD Act to give rise to liability on the part of the discriminator. The two sections of the DD Act which the applicant should have claimed under were: · Section 24 'Goods, services and facilities' ' It is unlawful for a person who… provides goods or services, or makes facilities available, to discriminate against another person on the ground of [their] disability.' and · Section 27 'Clubs and incorporated associations' ' 'It is unlawful for a club or incorporated association to discriminate against a person who is a member on the ground of [their] disability… by subjecting the member to any other detriment.' In the Federal Magistrate's view, even if the applicant had got her claim straight, her prospect of success would not have improved. This is because, under s24, the vice president herself did not provide the services, the IRSQ did and it was not a party to the claim. Furthermore, the applicant had been provided with the relevant services because, as the Federal Magistrate put it, she attended the High Tea 'at a cost which she must have accepted (although perhaps begrudgingly).' There was little hope under s27 either because, in the absence of a definition in the DD Act for 'detriment', the Federal Magistrate applied the ordinary meaning of the word in forming the view that the applicant had suffered no 'loss, damage or injury' (Macquarie Dictionary 2006) as a consequence of the vice president's actions. On the contrary, the IRSQ had granted her a substantial discount on the registration fee and she had accepted that concession and attended the High Tea (albeit sticking to the Sprite). Employers should nevertheless be mindful of catering arrangements for employees who suffer from particular food allergies or who have medical conditions which affect what they can eat, as in different circumstances the employer in this case may very well have been found guilty of discrimination. When catering for employees or even clients, employers should inquire about special dietary requirements with a view to avoiding potential liability.
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