Sisters In Law: ‘My boss hit on me and then made me redundant’

Kate was a model employee fresh from a glowing performance review when her boss’s boss approached and asked something disgusting.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to sexual harassment and unfair dismissal in the workplace.

QUESTION: I’ve just been fired from my job and I suspect it’s because I rejected my general manager’s sexual advances. I graduated university last year and started in a graduate program in February. I sailed through my probation period with glowing reviews and thought everything was going really well. Last month, my office had its annual Christmas in July function and at the end of the night, there was just a handful of us left, including my boss’s boss. He didn’t seem that drunk, but as I was leaving, he put his hand on my waist and asked if I wanted “company”. I said no, thank you, and left immediately. Two weeks later, my boss called me into a room and said my role had been made redundant, presented me with payout details and marched me out the door. Is this even legal? What are my rights when it comes to unfair dismissal? Kate, NSW

ANSWER: Your employer’s conduct appears to be unlawful and there are two main legal remedies you may be able to pursue — a sexual harassment claim and an unfair dismissal claim.

Your general manager’s conduct in touching and propositioning you is not acceptable, and unfortunately you are not alone in experiencing this so it is important that you take a stand, not just for yourself but for others.

The Australian Human Rights Commission’s 2018 National workplace sexual harassment survey revealed a staggering four in five (85 per cent) Australian women and over half (56 per cent) of Australian men over the age of 15 have been sexually harassed at some point in their lives.

To constitute sexual harassment under the law the behaviour needs to be any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature toward you, in circumstances where a reasonable person would have anticipated the possibility that you would be offended, humiliated or intimidated.

Don’t be concerned that this behaviour occurred after hours and after a few drinks.

Even a staff party where people are intoxicated can be considered a workplace, as such the same standards of behaviour apply during these events as in the boardroom.

You should lodge a complaint with the Australian Human Rights Commission within six months after the harassment occurred.

Kate had just had glowing performance review when she was dismissed without warning. Picture: Supplied

This complaint can be lodged against both the GM and possibly your former employer, as they have an obligation to protect you and take reasonable steps to prevent the harassment.

Often a complaint will go to conciliation before a hearing in a Tribunal or Court, which is an opportunity for both parties to discuss the issues and come to an agreement.

If you are successful in a claim you will be entitled to a sum of money (damages) for your pain and suffering, and other losses like income and superannuation loss and any cost of medical treatment.

There are some caps on how much you can receive, which vary depending on the state you are in.

Don’t forget some types of sexual harassment may also be offences under criminal law.

From what you’ve described, your “redundancy” can probably be challenged as unfair dismissal under the Fair Work Act.

Certain criteria need to be met for it to be a genuine redundancy and it seems like they have not been met, including:

• Your employer needs to have consulted you as required under the relevant modern award or enterprise agreement. Most agreements require a process to be followed which can include giving you information about the proposed changes, considering alternative proposals you put forward (reduced hours or job sharing).

• Your employer should explain the reason why your job no longer needs to be done (eg an operational change about how the work is performed, a decrease in work coming in).

• On some occasions, there may be an opportunity for you to be redeployed within the organisation — taking into account your experience, skills and qualifications and the requirements of the alternate role.

If the reasons given for your redundancy appear to be discriminatory — such as age or gender — that is unlawful under the Fair Work Act general protections.

We’d recommend you challenge the redundancy by seeking legal advice or contacting the Fair Work Commission (FWC) immediately as you only have 21 days from the date of dismissal to lodge an unfair dismissal application disputing it.

You should also check the payout details your employer has provided you as we have seen plenty of redundancies where the employer has not paid the employee their full entitlements.

The National Employment Standards set out minimum redundancy entitlements but some employees have an entitlement over and above that in a modern award, enterprise agreement or their contract of employment, also check if your former employer has a redundancy policy.

Redundancy payments are based on continuous years of service, however due to the short period of your employment it is unlikely you will be entitled to any additional pay on top of pay for notice of termination period and outstanding annual or long service leave entitlements.

Think about what sort of outcome you want from the FWC as there may be opportunities to resolve the matter without going to a hearing; for example do you want your job back, an apology, a written reference, training; bearing in mind the cap on compensation is the lesser of 26 weeks’ pay or $74,350.

To enforce your legal rights and not let your employer get away with this poor appalling conduct seek legal advice or contact Fair Work.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]