MUA INDUSTRIAL ACTION AT PATRICKS, GOLF COURSE SEXUAL HARASSMENT & WHAT TO CONSIDER IN UNFAIR DISMISSAL HEARINGS

MUA INDUSTRIAL ACTION AT PATRICKS, GOLF COURSE SEXUAL HARASSMENT & WHAT TO CONSIDER IN UNFAIR DISMISSAL HEARINGS

MUA MEMBERS AT PATRICK'S TOLD TO CEASE THEIR INDUSTRIAL CAMPAIGN

Fair Work Commission Vice President Graeme Watson has ordered the MUA to cease its "covert" campaign against automation at Patrick's Port Botany container terminal, rejecting the union's outright denials that it has reimposed a productivity cap and organised "go slows" since May this year.

In a scathing assessment of the industrial climate at the port, Vice President Watson said it was "characterised by a history of industrial action, including go-slows and productivity caps that are intended to damage the performance of the company while not significantly prejudicing the earnings of employees".

The vice president said Sydney branch deputy secretary Paul Keating's "vehement denial" of any possibility of industrial action undermined his credibility.

"I found Mr Garrett to be evasive and aggressive in his evidence which led me to believe that his action may have been deliberately designed to make use of the situation to cause damage to Patrick," Vice President Watson said.

SEXUAL HARASSMENT NOT PAR FOR THE COURSE

A Gold Coast resort has been found to be vicariously liable for the sexual harassment of a female worker and that its mishandling of her complaint contributed to a psychiatric injury.

The Queensland Civil and Administrative Tribunal was particularly critical of a HR manager who mismanaged the attendant's allegations by failing to obtain a full account of events from her, and instead focusing on obtaining a statutory declaration from the perpetrator, making it almost impossible to test his version of events.

It was alleged that during the Australian Ladies Masters Golf tournament over three busy days in early March 2010, a chef sexually harassed the complainant and discriminated against her based on her sex and age, by:

commenting that she smelt like "Old Spice" – a scent he associated with his grandfather and asking whether anyone else could smell it;
sniffing the air when in her vicinity, invading her personal space; and
referring to her as a cougar and making growling noises, including growling in her ear and around her neck.

The tribunal found that the male chef had subjected the complainant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature, saying that a reasonable person would have anticipated the possibility that the complainant would be offended or humiliated by the conduct. The Tribunal also found the chef made the cougar and "old Spice" references in response to the attendant's age.

An order of $35,490 in compensation was made for loss and damage, and the Tribunal ordered the chef to pay $4,500.

WHAT TO CONSIDER IN UNFAIR DISMISSAL HEARINGS

A full bench of the Fair Work Commission (FWC) had found that in determining unfair dismissal applications, FWC members are required to consider all of the factors under s387 of the Fair Work Act, and can't therefore find in an employee's favour solely on the basis that there is no valid reason for a termination.

The Full Bench found that a Commissioner was wrong to find two employees were unfairly sacked after finding there was no valid reasons for their dismissals, but without considering the other provisions of legislation related to unfair dismissals.


Matthew Waring

Matthew Waring

Managing Director at Waring LEGAL

Waring Legal and Waring Employment Advisors were both launched in 2012 as a professional and affordable option for individuals and companies seeking legal advice and industrial relations advice throughout Australia. Waring Legal and Waring Employment Advisors are a competitive alternative to large, impersonal law firms. Waring Legal and Waring Employment Advisors seeks to provide our clients with Professional and timely service as well as personal attention at reasonable prices.


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