Non-binary battle as worker fired for calling colleague ‘he'
The case went to the Fair Work Commission after the fired worker claimed wrongful dismissal, but the matter was kept under wraps because the conciliation conference was confidential.
The identities of the two people at the centre of the pronoun controversy and the name of their employer is not publicly available information, but details leaked out after lawyers started talking about the implications of the case.
The West Australian understands the legal fight erupted after an exchange at a leadership training course in February, when the man said 'he' while introducing the younger co-worker to the room.
Another staff member corrected him and the man apologised to the worker — a biological male who identified neither a man nor a woman.
The non gender-specific employee had earlier told the man that they wanted to be referred to as 'they' and the pronoun was written on their name badge.
Relations between the pair remained overtly cordial for the duration of the training day. They sat next to each other and were partners in various role-playing scenarios.
The older worker was later informed by his manager that a formal complaint had been lodged, and a written apology was required.
He refused, claiming nobody could be compelled to call a colleague 'they'.
He later told a Fair Work hearing that if one person had the arbitrary right to use a particular pronoun then another person had the right not to.
The decision to not apologise exacerbated an already harsh backlash from co-workers, many of whom were in their 20s and had sided with their non-binary colleague.
The company launched an investigation in March and the older worker was shown the door.
He claimed his dismissal was unlawful and sought legal advice, intending to take the matter to the Federal Court.
The matter was shuffled to Fair Work, where he was told he risked a violent social backlash if he pursued the matter in open court. It was with that in mind he reached a confidential settlement with his former employer.
The case is unusual because it is not tinged with religious overtones. The sacked worker's refusal to say sorry in writing was not motivated by faith, rather from a belief he was being bullied into accepting a position on gender politics.
Lavan Legal partner Bruno Di Girolami, who specialises in workplace law, said the case was 'new legal territory'.
'This situation would broadly fall within equal opportunity legislation,' Mr Di Girolami said.
'Those laws say that you cannot be discriminated against based on gender or intersex status. So, if a company had a policy that employees would not be called 'they' or 'them' then that would likely be actionable by a transgender or non-binary employee on the grounds it is discriminatory, but each case would turn on the facts.'
Lawyers who spoke to The West Australian about the case said there did not appear to be a legal right for someone to be called 'they' or 'them' and it was up to individual companies to articulate pronoun convention.
It is understood that the company who employed the 63-year-old did not have a pronoun policy.
Gender politics have dominated headlines over the past few days courtesy of transgender woman Roxanne Tickle going to court to prove that female-only spaces were illegal if they excluded trans women.
Gay and trans rights advocates Equality Australia has thrown its weight behind Ms Tickle's fight with Giggle app founder Sall Grover.
Ms Grover had rejected Ms Tickle from the female-only networking app on the grounds the applicant was born a man. The Lesbian Action Group has thrown in behind Ms Grover.
Equality Australia's application to get involved in the case will be decided on August 4, when Ms Grover's appeal is heard.
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Shariff indicated in his ruling on Wednesday that he was 'satisfied that Mr McCallum has established that there is a serious question to be tried as to whether he has an entitlement to relief, which I do not regard as weak but equally I cannot presently assess it to be strong'. Following Shariff's order, and until the matter goes to trial, Ngo has proposed that the film's opening credits will now read: directed by Stephen McCallum; writer and director David Anthony Ngo; a documentary by David Anthony Ngo and Erin Williams-Weir. If the case does go to trial next month, what will be at stake is not just who made the film, but the question of what directing a documentary actually entails. Is it writing and asking the questions of a subject while filming them, as even Ngo concedes McCallum did? Is it developing the idea, writing the treatment and script, lining up interviews and overseeing the edit, as Ngo insists he did? Or is the person who turns hundreds of hours of archival and interview material into a coherent narrative the one who deserves greatest credit – and if so, is that an editor (in this case Julian Hart, who also assembled The Tinder Swindler) or executive producers John Battsek (an Oscar winner for Searching For Sugarman) and Chris Smith (Tiger King), who gave extensive notes and fundamentally helped shape the final story? 'I personally believe that the fundamental role of a director is to be the lead storyteller,' Ngo said. 'That comes down to overseeing, particularly in documentary, the research, the writing, the creative decisions of whom to interview, how to interview, gaining trust, access. 'I wrote every outline,' he continues. 'I wrote every paper cut. I spent two years-plus working with the editors back and forth on calls. I have worked tirelessly on the project for the last six years.' There's a lot more at stake than just this film, too. The four-part series that was originally envisaged also exists, with a wealth of material and stories beyond what's in the feature. And Ngo and Williams-Weir have the rights to tell Cooper's story in a narrative feature form too, which is what they originally had in mind.
