General protections: Bullied SBS journalist loses case
A general protections case involving a journalist who suffered bullying while working at SBS has seen her fail to get reinstated. The judgement, made by the Federal Court in October, came despite an independent investigation finding that the journalist had suffered bullying at SBS. This was a finding that the broadcaster itself acknowledged as true.
Let’s look at why the journalist was dismissed and the reasons her general protections claim ultimately failed.
General protections case: SBS journalist subjected to “harrowing” bullying from manager
In 2013, journalist Pallavi Jain was recruited by SBS to work in its Hindi language team, SBS Hindi. The team was led by executive producer Kumud Merani, a prominent figure in the Indian-Australian community. Ms Merani had led SBS Hindi since 1985 and her name was almost synonymous with the one-hour daily program. For Ms Jain, who had just suffered a marriage breakdown, the new job was a chance to get her life back on track. “It was a big thing for me. It felt like a new beginning,” Ms Jain told The Sydney Morning Herald in 2021. “I thought this would be a new start.”
But while working with Ms Merani would seem to be a privileged opportunity for Ms Jain, it was far from it. She would soon become the victim of ongoing bullying and harassment. This lasted for another four years, culminating in her dismissal. Which would later see her make a general protections claim with the Fair Work Commission (FWC). “The bullying was harrowing,” Ms Jain told The Sydney Morning Herald in 2021. “But what happened afterwards was worse.”
Ms Jain first complained to SBS management about the harassment in 2015, and thereafter twice more. She had asked for a change in manager, so that she didn’t have to report to Ms Merani. But SBS management refused to accommodate her request as she needed to be managed by a Hindi speaker. In Ms Jain’s general protections court hearing, SBS programs manager Maurizio Pascucci outlined that it was “essential that the people working in these [language] teams are fluent in the relevant language that the team is producing stories in.”
SBS forced to conduct independent investigation
When Ms Jain’s pleas for a change in manager fell on deaf ears, she reached out for help from external parties. This saw the Media and Entertainment Arts Alliance (MEAA) union for journalists take action through the Fair work. SBS was soon forced to conduct an independent workplace investigation through work safety authority Comcare. In 2016, the workplace investigation concluded that Ms Jain had indeed been subject to harassment at the hands of Ms Merani.
Comcare found that she had engaged in “repeated, unwelcome, unsolicited, unreciprocated” bullying. The authority also found Ms Jain to be an “honest and reliable witness.” This testimony would feature as a key factor in her general protections claim.
The mental health toll on Ms Jain
The ongoing harassment caused severe mental health issues for Ms Jain. She suffered from intense anxiety, panic attacks, insomnia and a shortness of breath that made her think she was going to die. “I was bullied and harassed by my manager and… this impacted my mental health”. She told The Sydney Morning Herald in 2022.
The Comcare investigation found that Ms Jain’s mental health issues were a direct result of working under Ms Merani. It also concluded that SBS were liable for costs Ms Jain had incurred to treat her mental health issues. Testament to the desperation that Ms Jain felt were her attempts to find another job. She had applied for more than 70 other roles at SBS and other organisations, but without success.
Despite the suffering of Ms Jain and the findings of the Comcare investigation, SBS management still refused to allow Ms Jain to report into a different manager. “All SBS needed to do was to change the reporting line, but they did not,” Ms Jain said in 2021.
Ms Jain is dismissed by SBS
SBS soon attempted to repair the relationship between Ms Jain and Ms Merani by conducting a mediation through the MEAA union. When the mediation failed, SBS placed Ms Jain in a rehabilitation program to help her find another job. But while this program was being conducted, SBS determined that Ms Jain was no longer able to work under Ms Menari.
With the requirement to work under a manager who speaks Hindi, Ms Jain’s employment was deemed no longer tenable. In December 2019, she was dismissed from her role by SBS.
Ms Jain makes a general protections claim
After her dismissal, Ms Jain lodged a general protections claim with the Fair work Commission. When this failed to be resolved, she then through the Federal Court to seek reinstatement of her employment. She alleged that SBS had taken adverse action against her for exercising her right to take care of her own health and safety.
As outlined in the general protections provisions of the Fair Work Act 2009, dismissing or harming the employment of an employee based on their having exercised a workplace right is unlawful. Ms Merani, who has since retired, was not a defendant in the general protections case nor was she required to give evidence. She claimed that “every story has two sides” and that “a dignified silence makes the most powerful statement.”
The Federal Court rules on the general protections claim
At Ms Jain’s general protections hearing at the Federal Court, SBS admitted that Ms Merani had engaged in bullying. However, the broadcaster argued that it hadn’t breached its legal obligations. That is, with respect to ensuring the health and safety of Ms Jain. In October 2022, the Federal Court dismissed Ms Jain’s general protections claim, finding that SBS had not breached the Fair Work Act 2009.
Ms Jain said that the decision implies that it was an inherent requirement of her job to report to the same manager, and that because she was “unable to do so due to the health risks involved, SBS had the right to terminate my employment.” Ms Jain, however, still remains committed to ensuring other workers don’t suffer the trauma she experienced. She said that the judgement “made my resolve to fight workplace bullying even stronger.”
SBS’s toxic culture has previously been alleged
Ms Jain’s general protections claim came after several other SBS employees reported a culture of toxicity and racism at the broadcaster. In 2018, its news presenter of the previous 30 years Lee Lin Chin quit because she was unhappy with management’s treatment of staff.
Ms Chin said that she didn’t personally suffer racism at SBS, but she believed there were systemic issues plaguing the broadcaster. This included a lack of diversity in its management as well as a “lack of consideration and common human respect” throughout the organisation. In 2020, former SBS employee Nick Bhasin wrote about the racist attitudes he experienced while at the broadcaster. He said that he had made a complaint to SBS management about a specific instance of racism which fell on deaf ears.
SBS has previously faced a general protections claim
Ms Jain’s general protections claim wasn’t the first made by a former SBS employee. In 2015, former SBS World Sports presenter Scott McIntyre made a general protections claim after he was summarily dismissed. This was for posting a series of offensive tweets about Anzac Day. Mr McIntyre was dismissed after then Prime Minister Malcolm Turnbull labelled the tweets “despicable.” He then reached out to SBS CEO and managing director Michael Ebeid. Shortly after, Mr McIntyre was dismissed by Mr Ebeid, who said that his role at the broadcaster was “untenable.”
In his general protections claim, Mr McIntyre alleged that SBS had taken adverse action against him because he had expressed his political opinion. As we have discussed in a previous article, expressing a political opinion in the workplace is a right afforded to employees. This is set out in section 351(1) of the Fair Work Act 2009. Discriminating against an employee based on their political opinion is generally considered unlawful.
In his general protections claim, Mr McIntyre contended that his tweets constituted a political opinion as defined under section 351(1). However, after he and SBS failed to come to a resolution during conciliation, Mr McIntyre abandoned his application based on this section. This was because his legal team realized that his general protections claim was “doomed to fail.”
Under section 351(2)(a), discrimination is not an adverse action if it is not unlawful under the anti-discrimination law that applies in the location where the action is taken. The anti-discrimination laws in NSW, which applied to Mr McIntyre’s case, do not state that discrimination based on political opinion is unlawful.
Have you been unfairly dismissed?
A Whole New Approach are Australia’s leading workplace mediators and commentators. AWNA are not lawyers, nor do we want to be. We have deep experience in helping Australian workers lodge unfair dismissal and general protections claims with the Fair work . When making a claim, it’s often difficult to understand your obligations. Further what evidence you need to present to the FWC. We can help make this process simple by guiding you on exactly what you need to do to make your claim a success. In a toxic workplace culture, feel that your are being forced to resign ring us now.
A Whole New Approach offers a no win, no fee service. Plus, you can have a free initial consultation with us to discuss your situation.
Call us today on 1800 333 666 to see how we can help you.