Know the line
Recent reports about the conduct of a surveyor working at the Rockingham Council draw attention to the fact that even though you are not at work your behaviour could still be considered workplace discrimination or harassment.
Building surveyor Colin Reguero-Puente filed an application for unfair dismissal after being sacked by the City of Rockingham following an investigation into allegations of inappropriate conduct made by other employees.
The Fair Work Commission heard Mr Reguero-Puente frequently sent unwelcome and unsolicited sexually explicit emails and text messages to younger female colleagues, often late at night, and into the early morning and made inappropriate comment at work.
It heard that he sent a female colleague an unsolicited photo of his penis and repeatedly requested she send him a naked photo of herself.
During the same exchange the Fair Work Commission heard he wrote, “don’t worry, I checked the EBA. Not on the clock so doesn’t matter.”
According to evidence given, two days later, he texted her saying, “I re-read the messages and thought – ooops are we good? Prob over stepped the mark. But I must admit I enjoyed it.”
The Fair Work Commission also heard Mr Reguero-Puente said to a female co-worker, “Your arse looks good, but I can’t say that as I have done my sexual harassment course, so I can’t.”
The Fair Work Commission rejected Mr Reguero-Puente’s application, stating that his dismissal was not harsh, unjust or unreasonable.
Under the Equal Opportunity Act 1984 unlawful sexual harassment includes an unwelcome sexual advance or request for sexual favours or unwelcome conduct of a sexual nature.
The behaviour must be such that the harassed person has reason to believe if they reject the advance, refuse the request or object to the conduct they will be disadvantaged (for example dismissed, demoted or denied benefits) or they are in fact disadvantaged if they object to such behaviour.
Sexual harassment does not need to be repeated or continuous, it can involve a single incident.
One of the areas of public life where sexual harassment is unlawful is employment, which means it is unlawful to sexually harass an employee or an employee of another person or organisation, a co-worker, a potential employee or employer, commission agent or contract worker.
Examples of sexual harassment include:
- unwelcome physical touching, hugging or kissing
- intrusive questions about a person’s private life or body
- sexually explicit pictures, e-mails or text messages
- displays of offensive posters, calendars, graffiti or computer graphics
- requests for sexual favours.
While it is important to know what constitutes unlawful workplace sexual harassment, it is also worthwhile to think about the impact your behaviour might have on your colleagues.
If you have doubts about whether your behaviour is inappropriate to your co-workers, then it is best to not do it.
VCAT decides strata bodies do provide services
Recently the Victorian Civil and Administrative Tribunal found that property owners corporations provide services within the meaning of the Victorian Equal Opportunity Act 2010 (the Act).
Anne Black owns and occupies an apartment in a complex in Victoria and during 2015 she developed disabilities that affect her mobility. She now relies on a wheelchair and scooter for mobility.
The two owner corporations involved own and maintain parts of the building where Ms Black has her apartment.
Ms Black is a member of both corporations and is entitled to access and use the common areas of the building.
One corporation owns and is responsible for the main entry to the building. The other owns and is responsible for the doors to the car park, the rubbish disposal area, and the courtyard and garden.
Ms Black claims these doors, and the ramp to the car park door, are not suitable to her disabilities and that various modifications are required so she can use them.
The corporations have not made the modifications and Ms Black has applied to the Victorian Civil and Administrative Tribunal (VCAT) for remedies under the Act.
She alleged that, as service providers, the corporations had indirectly discriminated against her and failed to make reasonable adjustments for her disability in breach of s45 of the Act.
The corporations and Ms Black were in dispute about the application of the Act as the owner corporations contended they were not providers of services, so they applied to the VCAT to clarify the matter.
In February 2018, VCAT found the corporations did provide services to Ms Black. The corporations then applied to the Supreme Court for a declaration.
The court also ruled in Ms Black’s favour that the term ‘services’ applies to the activities of owners’ corporations and that s. 4 of the Act is open and inclusive, extremely broad and covers any sort of helpful activity.
Although there are differences between the Victorian Equal Opportunity Act 2010 and our WA Equal Opportunity Act 1984, this decision does clarify that Strata Bodies provide services, and they include modifying common areas at the request of occupiers with disabilities.
Last year the WA Equal Opportunity Commission conciliated an agreement between a complainant who used a mobility scooter and the complainant’s Body Corporate to create an accessible pathway for the complainant to enter and leave the complex on a scooter.
To read more about the case in the Victorian Civil and Administrative Tribunal click on the link:
OWNERS CORPORATION OC1-POS539033E and OWNERS CORPORATION OC3-POS539033E v ANNE BLACK and VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION