1. WEEKLY INSIGHT
Worker sacked over offensive comments “sucking boss ****” yet tribunal rules unjust
What the case emphasised:
- Important to distinguish between different forms of harassment
- Not all harassment qualifies as sexual harassment (SH)
- SH has clear specific characteristics
- General harassment (GH) does not
- GH is not explicitly defined in Australian IR/Employment Laws
- GH aligns with workplace bullying under the FWA 2009 (Cth)
Case: Ramlan Abdul Samad v Phosphate Resources Ltd
- Key Issue: Distinction between SH & GH & Workplace Bullying.
- Context: Driver worked (age 62) at mining company for 20 years was dismissed for making inappropriate jokes breaching new introduced WH&S policies.
- FWC Held: Dismissal was harsh – with path to compensation or reinstatement.
FWC Findings:
- No formal/prior warning or performance management given to driver prior to immediate dismissal
- Comments driver made not seen as serious enough to warrant termination.
- The comment did not pose a serious/imminent risk to health & safety.
- Company had inadequate code of conduct training, especially given language barriers.
2. HR/IR & LEADERSHIP
Worker tested positive for cocaine was sacked then reinstated for being ‘unfairly dismissed’
What the case highlighted:
- The complexities of managing drug use issues
- Employer’s should not always resort to a zero-tolerance approach
Case: Reece Goodsell v Sydney Trains [2023] FWC 3209 (4 December 2023)
- Sydney trains employee breached Drug & Alcohol Policy (D&A Policy)
- Tested positive for cocaine during random drug & alcohol screening
- Employee had 26 year clean record + no evidence of impairment at work
- Employee was reinstated but saw 20% loss in pay due to the failed drug test
FWC Findings:
- Sydney Trains inadequately communicated their Drug & Alcohol (D&A) policies
- They also:
- Failed to address earlier criticisms regarding these policies
- Neglected to correct issues within the D&A policies
- Did not effectively inform their employees about D&A policies.
3. MARVINHR
In an time where employers are increasingly scrutinised by government regulations it’s paramount to have robust support. At marvinHR we are dedicated to providing top-notch employment advice on& ER support across Perth to companies of all sizes.
We specialise in managing workplace investigations into sensitive matters, ranging from minor grievances to complex cases of harassment and bullying. Neglecting these issues can not only harm your workplace culture but also lead to WorkCover claims or escalate into disputes with the FWC.
By partnering with marvinHR for $1000 per month, you can smoothly & effectively navigate these challenges. We ensure a safer, more harmonious workplace for everyone, bolstering your company’s resilience against potential disputes and fostering a positive work environment.
Reach out to our team today:
marvinHR General Manager ┊Saarrah Mathinthiran ┊ saarrah@marvinhr.com ┊ +61 8 6377 7607 ┊
marvinHR HR Consultant┊Ella Barwood┊ ella@marvinhr.com ┊ +61 8 6377 7605┊
