Commissioner for Equal Opportunity e-bulletin

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July 2020

From the Commissioner - The power of an apology

Recently a cartoon was published in the West Australian newspaper with a racist slur. The West Australian did the right thing and apologised for any offence caused and removed the cartoon from its publication.

At the Commission we aim to conciliate complaints of discrimination and in that process, complainants often come to conferences with an idea of outcomes they would like from it. In most instances, complainants will seek an apology as part of those outcomes.

A genuine apology carries a lot of weight in the conciliation process. It is an acknowledgement of the complainant’s distress and, in some instances, has the power to resolve a complaint rather than it going to the State Administrative Tribunal where it can become a costly legal process.

In the past three financial years apologies, policy changes and monetary payments were recorded as the top three outcomes for conciliation.

Many complainants come to the process with an apology as the only desired outcome; such as a man who was called ‘a senile old coot’ by his colleague at work or the woman who was asked by her potential employer at a work trial if she watched porn and had sex with her boyfriend.

Even though both scenarios were offensive and distressing to the complainants, both complaints settled with only an apology.

It is something to keep in mind as people navigate social media and the realm of public comment.

If what you have written or posted causes someone offence, a genuine apology may be all that you need to make things right.

Yes, public comment of any sort should endeavour to not discriminate, harass or cause offence in the first place, but if it does, I encourage those causing offence to say sorry and acknowledge the other party’s feelings.

 

John Byrne

WA Commissioner for Equal Opportunity
Dr John Byrne

 


 

Age is not a use by date

 A recent Federal Court decision showed labour hire company CoreStaff WA had discriminated against a man because of his age.

In October 2018, the complainant applied for the role of grader operator in the Pilbara.

The application was forwarded by CoreStaff to Gumala Enterprises, which provides mining-related services in the Pilbara region of WA.

On receiving the complainant’s job application, Gumala Enterprises HR Advisor emailed the CoreStaff Area Manager stating, ‘…we had his details already, he applied directly with us. He has all the tickets we are looking for however he [sic] age is a concern – 70 years old.”

Later that day, the CoreStaff Area Manager emailed the worker stating, “sorry…no joy with the role at Gumala due to your age mate.”

CoreStaff argued there was no refusal to employ the complainant because there was no vacancy.

The Federal Court did not agree with this as they held that in submitting a job application with CoreStaff, the complainant had begun the recruitment process for a position at Gumala as an employee.

The full decision is also available to read.

 

 


 

From the vault - Sexual harassment in employment

Vonda Krepp worked in a bakery in the small country town of Capel in the Southwest of Western Australia.

Rocky Valcic was a master baker and owner of the bakery.

Ms Krepp started as a shop assistant at the bakery at the end of June 1991 and within the first week of her employment, Mr Valcic persistently subjected Ms Krepp to unwelcome sexual advances and sexualised behaviour.

Ms Krepp said the respondent would throw small items at her breasts, usually the rings from the cans of beer he consumed.  He would also attempt to grab her breasts and rub himself up against her and to pinch her bottom.

Mr Valcic would frequently ask Ms Krepp if her husband had ‘given her one’ or whether she would ‘give (Mr Valcic) one’.

On one occasion Ms Krepp said Mr Valcic commented that she had nice lips and he wondered whether her other lips were as nice.

Ms Krepp said she made it quite clear the conduct was unwelcome; however, the behaviour continued daily.

In September 1991 Ms Krepp went on holiday and by that time she had decided to leave her employment as she was no longer able to tolerate his behaviour.

 “…I’ve had passes made at me before in a workplace, but this was different. These weren’t passes; these were vulgar, horrible, suggestive and filthy things,” she said during the Equal Opportunity Tribunal hearing.

However, when she returned from holidays Mr Valcic changed her role to delivery van driver, which kept her out of Mr Valcic’s way.

When she commenced work as a delivery driver, she went with a fellow worker, Heather Scott, who showed her what to do as a delivery driver.

She mentioned the harassment to Ms Scott and that she was seriously thinking about making a sexual harassment complaint.

Not long after that she was telephoned by Ms Scott who told her she wasn’t needed to drive the delivery van.

Mr Valcic then telephoned Ms Krepp to ask if she was threatening him and when she questioned him about not driving the delivery van anymore, he told her she must leave.

Her impression was that Ms Scott had told him about her plans to make a sexual harassment complaint.

Throughout the hearing Ms Krepp maintained she needed the work and that she enjoyed the job, she just could not put up with the harassment.

“What I wanted to do was to stop people like Rocky thinking that he could just do what he damn well likes with people.  That was my job.   He had no right to treat me and do what…he just thought he could do it to anybody,” she said.

As well as Mr Valcic, other staff members were called as witnesses during the Tribunal hearing. Besides a former bakery employee who described Mr Valcic as ‘sleazy’, the existing staff said they did not believe Mr Valcic’s behaviour was inappropriate.

Mr Valcic himself denied any inappropriate behaviour towards his staff.

The other female staff also spoke about Ms Krepp and her feelings other female staff did not like her.

One said Ms Krepp probably felt that way because the others were like family and were all well connected socially in the town, which made it hard for Ms Krepp to break into.

The Tribunal formed the view this connection was extremely important to a proper appreciation of the evidence the other female staff gave

Most of the existing female staff had ongoing important relationships to Mr Valcic in that they relied on him for employment or had someone close to them that did. The Tribunal therefore found their evidence to be ‘coloured’ by this.

It felt satisfied Mr Valcic did sexually harass Ms Krepp and that sex discrimination had also occurred because it was likely the detrimental treatment she was subjected to was because she was a woman.

Mr Valcic was ordered to pay $4000 to the complainant.

As Ms Krepp also stated the sexual harassment in a country town such as Capel had caused her distress because she felt she was the subject of small-town gossip, the Tribunal also ordered Mr Valcic to make a public apology to her in the local newspaper.

The full decision can be read on our website.

 

 


 

What's coming up

The Commission’s Training Calendar from July to December 2020 is now available. You can register for all Commission courses on the Community Education page.

29 July 2020                    Introduction to Equal Opportunity Law

22 September 2020        Introduction to Equal Opportunity Law

18 August 2020               Sexual Harassment – Know where the line is

Please contact us on 9216 3900 if you are interested in organisation specific training or for a rights-based session for your clients or community members.

 

 


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