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AFL 'discrimination' media frenzy provides valuable lessons

Last week's controversy involving the AFL, Melbourne Football Club (MFC) and the media provides valuable lessons for your workplace.

It was reported in the media that AFL employee Community Engagement Officer, Jason Mifsud had spoken to media identity Grant Thomas about alleged 'unsubstantiated' discriminatory behaviour by MFC Senior Coach Mark Neeld. While the exact details are still murky, the media reported that a player had confided to Mifsud that indigenous players were treated less favourably than non-indigenous during players in that, unlike non-indigenous players, they were not afforded the opportunity of one-to-one meetings with MFC Coach during the pre-season. The allegation clearly relates to race-based discrimination.

This incident underlines the importance of continued vigilance and education on the processes that support your Anti-Discrimination, Harassment and Bullying policy. It also reminds us of the importance of the workplace investigation as a means of substantiating allegations of discrimination, harassment and bullying in the workplace.

Organisations and individuals must understand that an investigation based on the 'balance of probabilities' is the first step to giving substance to any allegation, and that even after such a process there needs to be a high level of diligence afforded to the way findings are communicated.  The fact that such an allegation remains unsubstantiated but has been published gives the person who is alleged to have breached the policy the grounds to sue for defamation.

The processes we associate with 'natural justice' should be clear to all involved before an allegation is made. If an allegation of unlawful discrimination is made (and even that is yet to be confirmed), the matter should be brought to the attention of a person appointed to deal with such matters. A workplace investigation into the matter should be conducted, providing the complainant and the respondent with an opportunity provide statements. Witnesses should also be interviewed to assist the investigator to make an assessment as to whether or not, on the balance of probabilities, the complaint has substance. The investigation findings should then be provided to the parties involved with the matter, and subsequent reasonable actions taken. Providing the parties and employer have not agreed otherwise, the information may then be made public.

Quite clearly, on the basis of what has been published thus far, Mark Neeld, appears to have been afforded no 'natural justice' whatsoever. At this stage, the AFL's actions of apologising to Neeld and warning their employee seem appropriate. There may, however, also be a case for reviewing the way their employees are educated on making and handling complaints of unlawful discrimination, harassment and bullying.

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