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Thomson Reuters Australia
Issue 512 , Friday 17 March 2017

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In this issue

Tribunal to examine exec's role in failed hiring

30% doctor CVs, mainly over age bias fears

QCAT loses work bias cases to QIRC

Worker anonymised after citing fears for future employment

Qld Govt funds federal women's IR service

Victoria pilots recruitment de-identification

Court hears mediation discrim claim against lawyers and registrar

Women on boards: Aust just better than average

PC NDIS submissions due

WGEA reporting, it's (almost) time

Unconscious bias training for lawyers

'Lehman Sisters' theory debunked

EU companies can ban Islamic headscarves

Disability discrimination is deadly

Uber to investigate claim of culture of harassment

Fox News US settles harassment claim

Diary

Editorial Team


[1]

Tribunal to examine exec's role in failed hiring

An employer has lost a bid to remove one of its senior executives as respondent to a hiring-related discrimination claim after the tribunal found while she was not the final decision-maker she had been party to stopping the recruitment from going ahead.

Qld's Metro North Hospital and Health Service denied it had decided not to appoint Dr Christopher Davis to the role. Rather, it claimed it had decided not to fill the position as it was about to change its service delivery model. Therefore there was no reason to have executive director medical services Donna O'Sullivan as a respondent to the claim especially as acting chief exec Kerrie Mahon was the decision-maker.

However, the Queensland Civil and Administrative Tribunal (QCAT) said the evidence showed O'Sullivan had declined to approve Davis's appointment when it crossed her desk. "The request to Ms O'Sullivan to approve the brief and pass it on was one of the arrangements in the recruitment process and she made a decision about those arrangements which was potentially discriminatory," QCAT Member Jeremy Gordon said. In an email she'd said she needed to talk with Mahon about it so might also have been involved in the final decision, Member Gordon said.

Davis was ex-Qld assistant health minister

Davis claimed Metro North "deliberately overlooked him for appointment as a gerontologist" because of his political belief or activity. Davis had been state assistant health minister and a Liberal National Party MP. He had resigned from the LNP, having been dumped as assistant minister, just a few months before applying for the Metro North job in August 2014.

Davis told the QCAT he was "eminently qualified and experienced" for the Metro North role and by the time O'Sullivan acted had been the only candidate. Yet days before he was due to be interviewed Metro North called off the process. Metro North's "brief of approval" showed three out of five managers had signed off on Davis but next on the schedule - O'Sullivan - had not. Emails showed she instead wanted to speak with Mahon.

Member Gordon held there were three possible reasons why O'Sullivan did not approve Davis's candidature. She was aware: a) Metro North was introducing a clinical streaming model of clinical service delivery and it would be inappropriate to continue with the recruitment process at this stage; b) there might be some reason why it was not appropriate to proceed but did not know what that reason was and wanted to discuss that with McMahon; or c) there could be a difficulty in appointing Davis given his political activity and wanted to discuss that with the acting chief exec.

While it was "impossible at this stage … to say which of a), b) or c) are correct, or whether there is some other innocent explanation for Ms O'Sullivan's decision", that had to be examined at a full hearing, Member Gordon said. "It is not fanciful that the reason might be c)." He rejected Metro North's application and the matter continues. (Davis v Metro North Hospital and Health Service & Ors[2017],QCAT 056, 17/02/2017)

[2]

30% doctor CVs, mainly over age bias fears

Almost 30% of Australians have doctored their CVs out of fear of being discriminated against, according to a job market survey. Some 19.9% of the 3,150 respondents said they doctored their resume out of a fear of being discriminated against due to their age, while 5.9% cited race, 5.2% their name and 3.8% their gender (some cited more than one reason). Almost 40% of respondents (ie, people working, looking for employment or students) said they had stopped using or purchasing a brand because of a bad experience applying for a job with it. Some 60% of the LiveHire job market survey worked in the private sector. Almost one-quarter had applied for up to 10 jobs over the past two years, while 8% had applied for more than 500.  

[3]

QCAT loses work bias cases to QIRC

Work-related discrimination matters are to be heard by the Queensland Industrial Relations Commission (QIRC), after amendments to the state's Anti-Discrimination Act 1991 came into force on March 1. In her 2nd reading speech, IR minister Grace Grace said "the bill provides the QIRC with exclusive jurisdiction to deal with all workplace related anti-discrimination matters". They "will still go to the Anti-Discrim Commission Qld (ADCQ) in the first instance but, if they cannot be resolved through conciliation and they are work-related, the matter will be referred to the QIRC". AnADCQfactsheet saysappeals from the QIRC will go to the Qld Industrial Court and then the Court of Appeal. While all non-work related matters will still go to QCAT, if a matter contains work-related and non-work related components, the QIRC will hear it.

The Act also:

  • establishes a general protections jurisdiction to protect workers against adverse action during, or dismissal from, employment; and workplace bullying remedies for state and local government employees similar to those available to private sector workers under the Fair Work Act;
  • further aligns Qld's minimum employment standards with the national ones for parental, carers and compassionate leave, including requiring employers to give an information statement to new employees; and
  • introduces a right to request flexible work arrangements.

[4]

Worker anonymised after citing fears for future employment

A nursing home worker has succeeded in having his identity anonymised after raising concerns publicity would make him "unattractive to a prospective employer" and defeat the purpose of his application.

ACT Civil & Administrative Tribunal Senior Member Laura Beacroft noted Ugandan born "Mr M" "contended that if the details of his case are published it will defeat the purpose of his application which is to ensure that his work history is not in any way marked by adverse issues. Even if he is successful he submitted that a person who makes a discrimination complaint is unattractive to a prospective employer," SM Beacroft said.

Mr M also sought orders for his nursing home employer, "B", to "retrieve any documents containing adverse comments about him on his employee file that had to date been provided to third parties". SM Beacroft said that order became redundant after B provided sworn evidence "neither myself nor any other officer of the [respondent's] … has released copies of the [respondent's] employment records relating to the [applicant] to a third party, including a prospective employer" or to any "medical school".

SM Beacroft made orders keeping private the identity of all parties, noting it would also protect the privacy of residents at the aged care facility, given the use of progress notes at the hearing.

No evidence actions based on race

Care services employee (CSE) Mr M lodged his race bias claim against B after it put a note on his employee file warning him about the nature of the progress notes he was writing about people in the home and warned him about a medication error. He said no other CSEs had notes put on their files for similar incidents.

The ACAT noted Mr M provided no evidence his race was behind the actions but asked the tribunal to infer that was the reason as there was no other.

However, B said while Mr M's notes were supposed to be factual observations about clients and their symptoms his included diagnoses, which he was not trained to do and about which an attending medical practitioner complained. It also provided evidence it warned three other staff members relating to medication errors.

SM Beacroft also noted in answering questions at the tribunal Mr B didn't appear to understand the difference between diagnosis and symptoms, and rejected his claim. (Mr M v B (Discrimination)[2017],ACAT 14, 6/03/2017)

[5]

Qld Govt funds federal women's IR service

The Queensland Government has announced it will increase funding for the Queensland Working Women's Service (QWWS) to help support vulnerable female workers in the federal industrial relations system after the Turnbull govt cut its funding. Industrial Relations Minister Grace Grace said this was the second time the Palaszczuk govt had had to step in, after the Newman LNP govt de-funded QWWS in 2012. "We stepped up to the plate to re-establish funding of $210,000 for the 2016/17 financial year, even though the bulk of the QWWS's services have been primarily within the Commonwealth's IR jurisdiction," Grace said. "This funding will now rise to $250,000 a year in 2017/18, providing financial certainty for the QWWS. "In addition to this and in recognition of the important work the QWWS does in the domestic and family violence space, the Department of Communities also provided $175,000 in funding over 12 months from November 2016."

[6]

Victoria pilots recruitment de-identification

The Victorian Government has launched a pilot program de-identifying job applicants' personal details such as names, genders, ages and locations. In a statement the govt said an implementation committee had spent nine months "finessing the structure of the pilot, which aims to ensure employers get the best people for the job to improve their bottom line". It said research shows people from culturally diverse backgrounds with equivalent qualifications and experience often have to submit more applications before they are offered an interview. The departments of Premier and Cabinet and Treasury and Finance, WorkSafe, VicHealth, the Transport Accident Commission, Westpac, Australian Industry Group and PricewaterhouseCoopers are some of those who signed up for the 18-month trial.Multiculturalaffairs minister Robin Scott said:"This is the first multi-sector cooperative initiative of its kind in Australia. It's a ground-breaking and important step towards equality of opportunity in our workforce." The Recruit Smarter program targets language in job ads with traditionally masculine or feminine connotations. It includes training to help HR and others involved in recruitment to recognise and prevent unconscious bias in the process. And it uses "programmed bias mitigation prompts" throughout the selection process to remind selection committees of common biases, hotspots and other potential bias hazards in job interviews.

[7]

Court hears mediation discrim claim against lawyers and registrar

The Federal Court has rejected most of a solicitor's claims that her ex-employer, his two legal representatives, her two legal representatives and the court registrar mediating her case discriminated against her on the grounds of her disability, gender and age. However, Justice Mordy Bromberg gave Leila Winters some opportunity to re-plead parts of her case against her ex-employer, Basil Fogarty. In April 2013, Winters complained to the Aust Human Rights Cmn that Fogarty engaged in conduct that breached the sex and age discrimination acts. Mediation took place resulting in a deed of settlement and the two current inter-related matters relate to the deed, which she alleged she had lacked the capacity to agree to.

Justice Bromberg dismissed her claims against Fogarty's legal representatives finding they had not provided her any service: "Any assistance, benefit or advantage received by the client's opponent as a consequence of the nature of a mediation is not provided by the lawyer to the opponent but is merely an incident of the provision of a service by the lawyer to his or her own client. He also rejected her "accessorial liability" claims against Fogarty and his lawyers based on their roles in the mediator's alleged discrimination. Justice Bromberg found the registrar was covered by immunity under 53C of the FC Act, so there was no cause of action for her to claim liability against them.

He allowed her to produce a re-pleading of her direct discrimination arguments relating to the "reasonable adjustments" she alleged her representatives should have made during mediation because of the distress she said they caused her to go through. However, he directed the parties to confer with a view to reaching an amicable resolution of the proceedings, before filing minutes on orders the court should make by March 2.

(Winters v Fogarty [2017]FCA 51, 2/02/2017)

[8]

Women on boards: Aust just better than average

Australia sits just above the global average for the number of women per board at 2.3 as against 2.1, according to executive search firm Egon Zehnder. Of the 44 countries studied, it said 16 could be labelled Diversity Champions, according to data in Egon Zehnder's 2016 Global Board Diversity Analysis (GBDA). "They have achieved the critical mass of three female board directors on average, and it is probable that board diversity has reached the tipping point in these countries." Its GBDA evaluates data from 1,491 public companies with market capitalisation exceeding EUR 6bn across 44 countries. It found if progress continues at the same global rate as the last two years (1.6% a year) "the average number of women per board will reach the critical mass of three (needed for transformative and sustainable change) by 2021, while gender parity remains 20 years away". It found new female board members were more likely than males to be under 45 – 11% and 8% respectively. Some 25% of director seats surveyed were held by non-nationals, compared with 19% by women. For the full report, click here.

[9]

PC NDIS submissions due

Submissions to the Productivity Commission's review into the costs and sustainability of the National Disability Insurance Scheme are due by March 24. The PC is scheduled to release a position paper in May before a final report this September. The PC will also examine; jurisdictional capacity; wage pressures; whether efficiencies have been achieved within the scheme; whether there has been any impact on mainstream services; and examine the most appropriate levers to manage any potential cost overruns.

[10]

WGEA reporting, it's (almost) time

With the reporting period to the Workplace Gender Equality Agency opening on April 1, the agency has published links to resources to help employers report on its website. The reporting period covers the 12 months from 1 April, 2016 to March 31, 2017 and reports must be lodged by May 31.

[11]

Unconscious bias training for lawyers

Law Council of Australia (LCA) has released a customised unconscious bias training program for the legal profession. Developed by diversity and inclusion specialists Symmetra it includes face-to-face workshops, train-the-trainer modules and online courses. "Human beings are hardwired to notice personal characteristics and to prefer those with attributes or experiences similar to their own, without conscious awareness," LCA president Fiona McLeod SC said. "Unconscious bias is an insidious and increasingly-recognised factor undermining organisational culture, leading to loss of productivity and revenue. Addressing unconscious bias encourages better decision-making and new approaches to problem solving. Training that helps lawyers to uncover and address unconscious bias doesn't just improve diversity, it can improve productivity and help firms to attract and retain top talent," McLeod said. Details, click here.

[12]

'Lehman Sisters' theory debunked

"There's a popular theory called the 'Lehman Sisters Hypothesis' that says well known bank failures (like the Lehman Brothers collapse) wouldn't have happened if there were more female staff in management," Macquarie University associate professor Elizabeth Sheedy says. "Our research suggests that increasing female staff is, on its own, unlikely to change the way risk is managed in banks. While female staff may be more risk averse on average, our research shows many of them are just as risk tolerant as their male counterparts. These are the women who tend to make it to the management roles where risk management decisions are made."

[13]

EU companies can ban Islamic headscarves

Companies in the European Union may ban staff from wearing Islamic headscarves and other visible religious symbols under certain conditions, the jurisdiction's top court ruled on March 14. Discrimination Alert's global news associate Reuterssaid this has resulted in a storm of complaint from rights groups and religious leaders. "In its first ruling on an issue that has become highly charged across Europe, the Court of Justice (ECJ) found a Belgian firm which had a rule that employees who dealt with customers should not wear visible religious or political symbols may not have discriminated against a Muslim receptionist it dismissed for wearing a headscarf," Reuters reported.

[14]

Disability discrimination is deadly

A University of New South Wales study has found "disability discrimination is deadly", and in NSW 38% of deaths of people with intellectual disability was preventable. NSW Council for Intellectual Disability is calling for proper investment in the health of people with intellectual disability.

[15]

Uber to investigate claim of culture of harassment

Uber CEO Travis Kalanick has promised the ride-sharing organisation will investigate claims ex-employee Susan Fowler posted on her blog that her manager repeatedly propositioned her, HR did nothing and that was not an uncommon experience there. "What's described here is abhorrent & against everything we believe in. Anyone who behaves this way or thinks this is OK will be fired," Kalanick said. "I've instructed our CHRO Liane to conduct an urgent investigation. There can be absolutely no place for this kind of behavior at Uber."

[16]

Fox News US settles harassment claim

Discrimination Alert'sglobal news associate ReutersreportsFox News reached a financial settlement several months ago with former host Juliet Huddy. Huddy claimed she was sexually harassed by two top figures at the cable news network, the WSJ reported, citing a person familiar with the matter.In a letter from her attorney to Fox News, Huddy claimed she had been harassed by "The O'Reilly Factor" host Bill O'Reilly and Fox News co-President Jack Abernethy, the Journal reported.

[17]

Diary

  • NEEOPA webinar: Insights from Catalysts Global Inclusion Index with Catalyst executive director Emily Wakeling and Australian Catalyst Ambassador and Telstra global head of diversity Troy Roderick. Register by March 31 for webinar April 4, 10-11am, details click here.
  • Being LGBTIQ+ in a straight man's world: lessons for more inclusive workplaces, Diversity Council of Aust, click here for event in Sydney and here for live-streaming.
  • Australian Human Resources Institute's Inclusion and Diversity Conference, Sydney May 1. Details click here.
  • Australian Network on Disability's Annual National Conference Enabling, Changing, Creating Impact', with keynote Barclays global head of diversity and inclusion Mark McLane. Melbourne May 16. Details here.

[18]

Editorial Team

Managing Editor: Peter Schwab. Ph: (02) 8587 7681; peter.schwab@tr.com.