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Category: Harassment at Work

  • Fair Work Commission – “bullying” was reasonable management action and rejected a long-serving employee’s bullying claim.

    The Fair Work Commission said, “bullying” was reasonable management action, and has rejected a long-serving employee’s bullying claim.  The Commission accepted that the employer, Salvation Army Employment Plus, took reasonable management action when it performance-managed its employee after she resisted changes to workplace practices.

    Commissioner Lee in a ruling issued 4 June 2015 said the issues raised by the Salvation Army Employment Plus job placement consultant in her bullying claim “are reasonable management action undertaken in a reasonable manner”.  The Commissioner said the consultant particularly objected to a change that involved her seeking to place in jobs clients from the full “rainbow” of applicants, rather than just the “generally job ready” clients she had dealt with in her 9 years with the organisation.

    The placement consultant told the Commission at the hearing in April that the change meant she was now required to deal with stream-4 clients who “may be somebody who is recently out of prison and they have drug issues, mental health issues, schizophrenia, they are considered not job-ready”.  The consultant refused to deal with the stream-4 clients claiming it was unsafe, but Commissioner Lee, after considering evidence including a recent Worksafe inspection, said he was satisfied there was no such risk.  Commissioner Lee said the change in client mix, alongside the employer’s new approach to performance management, “is a major driver” of the consultant making the bullying claim.

    The consultant claimed she was being unreasonably performance managed and micro-managed.

    The Commissioner said the consultant was “deeply distressed that her refusal to service ‘stream 4’ clients was the basis for the finding [in a performance assessment] that she was not meeting the values of the organisation”.  The employer gave her a score of 57 out of 100 in her most recent assessment, against an average across all employees of 62, marking her down for failing to service the stream 4 clients.

    Commissioner Lee said that it was “not unreasonable” for her refusal to “become a matter of note in her performance appraisal“, given that it was part of her position description.  The Commissioner said Employment Plus had in the past failed to assess individual performance but while its introduction had been “a significant change” for the consultant, “the manner in which it has been introduced or administered does not appear to be unreasonable.”

    Organisation shifting from “moribund” to “performance focussed“

    Commissioner Lee said the organisation had shifted from “a long period of moribund management to an environment where the organisation is performance focussed… However, while this represents a significant change in her working environment, the fact that it occurred and the method of its implementation did not amount to bullying”.

    Commissioner Lee said the change within Employment Plus was a response to the Salvation Army seeking to implement a “high performance culture” to turn around losses that meant the job agency was being subsidised.

    Commissioner Lee said “She was forced to adjust to a more active management after a lengthy period of the organisation managing her and her colleagues very poorly… However, while this was a change that had a personal impact on the [consultant], particularly with the high turnover, there is no evidence that the approach taken amounted to bullying behaviour directed at the [consultant], particularly given the evidence of the timely replacement of vacancies in the organisation.”

    [A. B. [2015] FWC 3353 (4 June 2015)]

  • Duty of care, bullying and harassment, and unfair dismissal: Court decision

    It was held that Curtin University did not breach a lecturer’s employment contract or its duty of care by failing to make progress with complaints he lodged against his superiors under the University’s grievance policy.

    The lecturer activated Curtin University of Technology’s Grievance Policy in May 2002 when he made a formal complaint that he was being marginalised and humiliated by his department and school heads.

    GrievancesIn line with the policy, the University’s Grievance Resolution Officer (GRO) forwarded the complaint to the lecturer’s Executive Dean, who said he would take it up with the alleged perpetrators.

    But the Dean did not raise the matter with them, and little progress was made with the grievance by September 2002 when a number of students lodged complaints about the lecturer’s teaching methods.

    The University stood the lecturer down while it investigated the students’ complaints, and in November he went on extended sick leave for a stress-related condition.

    The University ultimately rejected most of the students’ complaints.  From the start of 2003, the lecturer took a mixture of long service leave, annual leave and sick leave, and never effectively returned to work.

    He was certified totally unfit for work in February 2003, and his condition did not improve.

    Progress on the lecturer’s grievance stalled in 2003, with the University initially concerned that it could not proceed while he was on sick leave, followed by disagreement over who would conduct the investigation and the need for him to provide a coherent summary of his concerns, which had expanded since the initial complaint.

    In September 2004 the University sacked the lecturer after it found pornographic material and illegally downloaded music on his work laptop.

    The lecturer filed an unfair dismissal as a result of his sacking.

    The Australian Industrial Relations Commission (AIRC) rejected his unfair dismissal claim in a decision handed down in March 2006.

    A full bench refused the lecturer leave to appeal the AIRC decision, later that year.

    Following a deterioration in his psychiatric condition, the lecturer sued the University in the WA Supreme Court in February 2009, claiming that it had breached its duty of care to him by failing to deal with the alleged bullying and harassment, and not resolving his formal grievance.

    He also argued that the grievance process breached his contract of employment.

    images-2Drawing on the definition of ‘bullying’ adopted by the Federal Court in last year’s Farstad case, his Honour Justice McKechnie said that assessing “unreasonable behaviour” required an objective test, not a subjective one, “this must plainly be right as it accords with the general law of negligence“.

    Justice McKechnie held that none of the University’s employees bullied, harassed or victimised the lecturer, finding their “predominant motive” was his welfare, given they knew he was stressed and fragile.

    Policy contractually binding, but no breach

    Following the Farstad ruling, Justice McKechnie found that the University’s Grievance Policy imposed “mutually binding obligations” on the lecturer and the University.

    But he said any inaction by the University before February 2003 was statute-barred by section 38 of the Western Australian Limitation Act.

    The judge said the Executive Dean had breached “the protocol” in not raising the grievance with the department and school heads. And he said that while “in retrospect” the decision to suspend the process pending the lecturer’s return to work might have been wrong, “not every wrong decision is a negligent decision”.

    Justice McKechnie said the University’s failure to deal with the grievance while he was on leave was not a breach of its duty of care nor a breach of any implied condition of employment.  He said, “The correspondence and emails flowing between the [lecturer] and Curtin tell a story of a [lecturer] who kept expanding his grievances and adding persons each time he disagreed with them… The Curtin responses and communications between staff show an organisation concerned about the plaintiff’s fragile state and wanting to resolve outstanding issues if possible.”

    His Honour said the lecturer “blew hot and cold” about the grievance process, at times being unwilling to proceed and at other times wanting it expedited.  He said, “The actions taken by Curtin over the relevant period were reasonable responses. For most of the period, the [lecturer] was certified as unfit for work and Curtin reasonably exercised its duty of care by not permitting [him] to work during the periods he was so certified.”

    Justice McKechnie said the inquiries the University made of him from time to time did not breach its duty of care “nor did they demonstrate bullying“.

    His Honour found that the lecturer’s suspension following the student complaints caused his adjustment disorder, rather than the University’s failure to resolve his bullying grievance.

    [Please refer to Christos v Curtin University of Technology [No 2] [2015] WASC 72 (27 February 2015)]

  • Employer Liable Vicariously for Sexual Harassment of Employee

    The Queensland Civil and Administrative Tribunal has found a Gold Coast resort vicariously liable for the sexual harassment of a female employee, further, that its mishandling of her complaint contributed to a psychiatric injury. [McCauley –v- Club Resort Holdings Pty Ltd (no 2) [2013] QCAR 243 (13 May 2013).

    Image
    The Tribunal Member, Jeremy Gordon, found Club Resort Holdings Pty Ltd vicariously liable for a male Chef’s sexual harassment of the female Food and Beverage Attendant, who ran the buffet in the Kalinda Restaurant in the RACV Royal Pines Resort.

    Member Gordon was particularly critical of the HR manager who mismanaged the Attendant’s allegations by failing to obtain a full account of events from her, and instead focusing on obtaining a statutory declaration from the Chef, making it almost impossible to test his version of events.

    The Attendant alleged that during the Australian Ladies Masters Golf tournament over 3 days in early March 2010, the Chef sexually harassed her and discriminated against her based on her sex and age, by:

    • commenting that she smelt like “Old Spice” – a scent he associated with his grandfather and asking whether anyone else could smell it;
    • sniffing the air when in her vicinity, invading her personal space; and
    • referring to her as a cougar and making growling noises, including growling in her ear and around her neck.

    The Attendant attempted to ignore the Chef, but she was unable to stop his actions.  The Attendant claimed she told him, “this kind of behaviour is unnatural Steve, I’m old enough to be your mother, this is disgusting“.

    He replied: “you have nothing to be worried about, I’m a happily married man“.

    After 3 days the Attendant told the Chef that he was an “arsehole” and that he should back off and “f@#k off“.  The Chef apologised, but did not stop his comments.

    The resort’s investigation into the incidents concluded that the Attendant’s allegations were unfounded.

    The Attendant went on leave for 3 months and made 2 WorkCover claims for permanent impairment caused by the sexual harassment and the Resort’s inadequate investigation.

    The Attendant further alleged that the Resort victimised her in response to her complaint by:

    • failing to carry out an adequate investigation, and failing to find that her complaint was proven;
    • requiring her in June 2010 to conduct contract negotiations with the Resort’s HR Manager, despite her known lack of trust in the Manager;
    • disciplining her for talking to colleagues about the progress of her sexual harassment claim and for failing to perform her duties; and
    • subjecting her to unwarranted disciplinary action for failing to give 2 hours’ notice that she was taking sick leave as a result of experiencing a panic attack.

    Member Gordon found that the Chef had subjected the Attendant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature, saying that a reasonable person would have anticipated the possibility that the Attendant would be offended or humiliated by the conduct.

    He also found the Chef made the cougar and “Old Spice” references in response to the Attendant’s age (49 years of age).

    Member Gordon said it was “very surprising” that the Resort failed to corroborate the Attendant’s allegations, especially given WorkCover’s later conclusion “without a doubt that the events alleged by [the attendant] did take place“, injuring her as a direct result.

    He described as “extraordinary” the fact that the HR Manager failed to obtain a full version of the events from the Attendant’s point of view before asking the Chef to make a statutory declaration.   He said, “This error was compounded by the fact that [the Chef] was not interviewed again. This meant that his statutory declaration made on the day of that meeting stood as his statement in the investigation. The first time [the Attendant’s] allegations in full were put to [the Chef] was at the hearing before me“.

    The Resort’s Employee Relations and Remuneration Manager concluded that while the Chef had made the Old Spice and cougars comments, he said “a reasonable person in similar circumstances would view the comments as light hearted and not derogatory“.
    But Member Gordon found this conclusion was inadequate because the Resort failed to:

    • give the Manager a copy of an interview between the HR Manager and the Chef in March 2010, when he admitted telling the Attendant “you are a bit of a cougar“;
    • ensure the Attendant was interviewed by the investigator (she didn’t know one had been appointed); and
    • provide the Attendant an opportunity to comment on the Resort’s findings before she was told the result.

    Further, 3 witnesses (including the HR Manager) who the Attendant alleged were present in the kitchen, including when she told the Chef to “f@#k off“, were not called to give evidence during the investigation.

    Member Gordon found that the sexual harassment, discrimination and the mismanagement of the Attendant’s complaint contributed to and caused her to suffer from an adjustment disorder and depression, leaving her unable to work at the resort.

    Member Gordon found that while the Resort had a Fair Treatment Policy, it was unable to provide details of training provided to its employees.   He described the Resort’s response to the Attendant’s sexual harassment complaint as “inept and unprofessional” and ordered it to pay her $35,490 in compensation for loss and damage, and ordered the Chef to pay her $4,500.

  • Workplace Bullying – remove it from its current legal and cultural designation as an OHS issue

    National law firm principal, Josh Bornstein, says criminalising workplace bullying will not work, and Fair Work Australia should be given a new early intervention role to prevent cases reaching the point of irreversible damage.

    In a presentation at a Legalwise seminar in Melbourne last week, Mr. Bornstein addressed “myths” perpetrated about workplace bullying, including that it was a safety issue.
    “One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue,” Mr. Bornstein told his audience.

    One reason for this view was that workplace bullying was illegitimate regardless of “whether an injury is caused or threatened“. He compared it to unlawful discrimination, noting that both could cause catastrophic damage to health, “but it is only bullying that remains pigeon-holed in the OHS and personal injury sub-culture“.

    The second reason was entrusting enforcement to state-based OHS regulators, “hasn’t worked and it won’t work“.  Such agencies are overwhelmed by the volume of bullying complaints, and have quickly become jaded by the issue, developing a “compassion fatigue“.

    It is a time for changes to the Fair Work Act 2009 (Cth) to enable victims of workplace bullying to take a complaint to a tribunal or a court, “well before the situation has escalated to the point of irreversible damage [to their health]”… “Either Fair Work Australia, the Federal Court or Federal Magistrates Court could have a role.”

    Potentially, the Fair Work Ombudsman could initiate proceedings, as well as the employees themselves.

    On the proposal to expand the criminalisation of workplace bullying and other calls to extend Victoria’s Brodie’s law, Mr. Bornstein said he “couldn’t disagree more.”  Brodie’s law is an amendment to the Victorian Crimes Act 1958 introduced last year to target serious bullying behaviour, following the suicide of 19-year-old Melbourne waitress, Brodie Panlock.  Mr. Bornstein said that while the law was symbolically important, “at a practical level it has been next to useless. It does not apply to 95% of bullying situations.“

  • Costs Awarded Against Applicant in Sexual Harassment and Discrimination Case

    Workplace Sexual Harassment and Discrimination

    Claims of discrimination or sexual harassment are not all just high stakes for employers.

    In a recent Federal Court decision in Dye v Commonwealth Securities Limited (No 2) 1 [2012] FCA 407, Vivienne Dye is now faced with the prospect of having to declare herself bankrupt, having been ordered to pay $5.85 million in indemnity costs in relation to proceedings she brought against her former employer CommSec, and others.

    In mid-April 2008, it was reported through the media that Ms. Dye had made allegations of being sexually harassed by two senior bank officers at CommSec.

    CommSec responded to these allegations by stating that the investigation they had conducted on these claims had indicated that Ms. Dye’s allegations were unfounded.

    Subsequently, Ms. Dye commenced proceedings in the Federal Court on the basis that she had been sexually harassed by the two senior bank officers, discriminated against on the grounds of sex and disability, and victimised.   Ms. Dye also claimed a breach of contract, breach of industrial legislation, misleading and deceptive conduct, injurious falsehood and defamation.

    The Federal Court held that, “…the causes of action Ms. Dye chose to advance [were] each without any factual foundation or legal substance.”   As a result of the “falsehood” of the claims made, as described by the Court, Ms. Dye was ordered to pay the legal costs of Commsec on an indemnity costs basis.

    Ms Dye has appealed this decision.

  • Employer Escaped Liability in Sexual Harassment Case before NSW ADT

     In the most recent case before the NSW Administrative Decisions Tribunal Cooper v. Western Area Local Health Network [2012] NSWADT 39 (9 March 2012)

    Sexual Harassment

    , a male health care worker, who was employed by the Western Area Local Health Network, was fined $10,000 for sexually harassing a colleague.

    The employer, however, has escaped liability, and was not vicariously liable because it had taken the appropriate “reasonable steps” to educate the worker about sexual harassment, including the penalties for taking such action.

    The case involved two colleagues who had worked together for 5 years and who had socialised outside work.

    At the end of a staff training day in October 2010, the male employee gave his female colleague a folded piece of paper, which she said she would read later.

    When she did read it, she said she felt “physically sick” and concerned enough about the further potential behaviour of her male colleague that she made a complaint to her local police station in Orange, in the state’s central western.

    While the Tribunal said it was not necessary to record the content of the note in its decision, the Tribunal members said the note described, “a series of actions of a sexual nature proposed to be done by a male to a female“.

    The note was unsigned and it was not obvious who had written it.

    The female employee believed the note had been written by her male colleague and was directed at her.

    The male employee argued that another person had written the note, however, the other employee was cleared of any possible breaches of the workplace Code of Conduct after investigation.

    The ADT members said they were satisfied that the case met all the necessary tests to establish that sexual harassment had occurred (and the worker had breached s.22B of the Anti-Discrimination Act 1977) in providing the note to his colleague.

    These tests, established in Sharma v. QSR Pty Ltd. t/as KFC Punchbowlinclude:

    –       proving that conduct of a sexual nature had occurred and been unwelcome,

    –       that the conduct related to the applicant, and

    –       that a reasonable person would have anticipated that the other person would have felt intimidated, offended or humiliated by the conduct.

    In considering the employer’s liability, and whether it had authorised the employee to engage in the conduct in question, or failed to take all necessary steps to prevent the conduct – the ADT warned that it, “is not enough for an employer merely to institute policies – the policies need to be implemented and brought to the attention of the employees in a meaningful way“.

    The Tribunal found that the steps taken by the employer in:

    –       regularly requiring employees to re-commit to the relevant Code of Conduct, and

    –       regularly attend training in bullying and harassment

    “were sufficient, in the sense that all steps that could have been taken were in fact taken“.

    It ordered the male employee to pay his colleague $10,000 in damages.

  • Sexual Harassment and/or Sex Discrimination Complaints in the Workplace in Australia

    Employers should recognise that the areas of risk when dealing with a sexual harassment and/or sex discrimination claim are expanding.  The way in which sexual harassment and sex discrimination complaints are being brought and litigated is increasingly becoming more sophisticated and complex.  This includes bringing claims that rely not only on the anti-discrimination legal framework, but also obligations under contract, tort and trade practices and the adverse action provisions under federal workplace relation laws.

    Sexual Harassment Sex Discrimination

    Sexual Harassment and/or Sex Discrimination Complaints in the Workplace in Australia

    Until recently, damages payouts for cases of sexual harassment and/or sex discrimination in Australia did not generally compare to the US, being by and large modest amounts.  However, the sexual harassment claim brought by Kristy Fraser-Kirk against David Jones and its CEO, Mark McInnes, gave Australian employers some concern.

    At the time, Ms. Fraser-Kirk was claiming, amongst other things, approximately $37 million in punitive damages, based upon 5% of David Jones’ profit earned from 2003 to 2010, being the time Mr. McInnes was the CEO, together with 5 % of Mr. McInnes’ remuneration and benefits earned over the same period.

    The matter never proceeded to trial, and reportedly settled out of court for $850,000.

    While significantly less than the initial multi-million dollar claim, it was still a significant amount given the trend in damages in Australia for sexual harassment claims.

    In Federal Discrimination Law, which is a publication of the Australian Human Rights Commission (2011), it was reported that damages awarded by the Federal Magistrates Court and Federal Court in sexual harassment cases pursuant to the Sex Discrimination Act 1984 (Cth), ranged from $1,000 up to $392,422, with matters at the upper end being reserved for the more serious cases.

    However, it is worth noting that claims like the one brought against David Jones and its former CEO, were not initiated using the traditional path of first making an anti-discrimination complaint under the Sex Discrimination Act with the Commission.  Rather, in conjunction with a complaint lodged with the Human Rights Commission, Ms. Fraser-Kirk’s lawyers filed directly in the Federal Court alleging, amongst other things, breach of contract, tortious duties and trade practices legislation.  The effect was to “fast track” the claim process by circumventing the Commission’s conciliatory function.

    While the David Jones case was not ultimately tested in court, Australia may see matters similarly brought forward in the future.

  • Federal Government Announces Workplace Bullying Review

    Workplace Relations Minister Bill Shorten

    workplace bullying

    has announced a review of workplace bullying, to be conducted by the House of Representatives Standing Committee on Education and Employment.

    The review will cover “the nature, causes and extent of workplace bullying“, and will consider issues such as the prevalence of workplace bullying in Australia, the role of workplace cultures and policies in preventing and responding to bullying, and whether existing regulatory frameworks provide a sufficient deterrent against workplace bullying.

    The Committee will be required to provide its report to the Minister by 30 November 2012.

    I shall keep you informed of any developments in this area of the law.

  • Independent Investigations in Your Workplace – Bullying, Harassment and Discrimination – Training in Your Workplace

    Brooke Pendlebury conducts investigations in your workplace to assist you in managing bullying and harassment or discrimination complaints, reduce the risk of escalation of these complaints through early intervention, and provide thorough, efficient and independent investigation findings, when necessary.

    A full and thorough investigation provides your workplace with the information needed to make effective business decisions about individuals and teams helping you target resources to improve employee relations and team culture, as well as ensure compliance with the Work Health & Safety Act 2011 (NSW).

    Brooke offers the following services:

    • Full consulting services with respect to management of staff and conflict.
    • Independent investigations into complaints between staff and management, including bullying, harassment, discrimination, victimisation.  Detailed reports are provided to your organisation at the conclusion of the investigation.
    • Supported investigations for organisations that require guidance and support through the process of internally invetsigating complaints.
    • Training in investigation skills to help your staff managing complaints internally.
    • Training in prevention and zero-tolerance, and gradual workplace culture shifts, away from bullying and harassing to respectful and productive.
    • Mediations to assist staff overcome conflict situtaions.

    Please, call Brooke today to discuss how investigations and training may assist your workplace.

  • Social Media Policy for Your Workplace – Dealing with Facebook, Twitter, Blogs at Work

    A social media policy outlines for employees the guidelines or principles of communicating in the online world.

    A social media policy can be a company’s first line of defense to mitigate risk for both employer and employee.  You may already have a confidentiality agreement but it might not be enough.  Adding a few lines in the employee handbook to clarify that the confidentiality agreement covers employee interactions on social media sites might suffice.  But it is advised to create a separate social media policy to have something specific on file and accessible to employees and that they are aware of the policies existence.

    When drafting a policy, be sure to:

    1.    Remind employees to familiarise themselves with the employment agreement and policies included in the employee handbook.

    2.    State that the policy applies to multi-media, social networking websites, and blogs for both professional and personal use.

    3.    Internet postings should not disclose any information that is confidential or proprietary to the company or to any third party that has disclosed information to the company.

    4.    If an employee comments on any aspect of the company’s business they must clearly identify themselves as an employee and include a disclaimer.  The disclaimer should be something like “the views expressed are mine alone and do not necessarily reflect the views of the company.”

    6.    Internet postings should not include company logos or trademarks unless permission is asked for and granted.

    7.    Internet postings must respect copyright, privacy, fair use, financial disclosure, and other applicable laws.

    8.    Employees should neither claim nor imply that they are speaking on the company’s behalf.

    9.    Corporate blogs, Facebook pages, Twitter accounts, etc., could require approval when the employee is posting about the company and the industry.

    10.    That the company reserves the right to request that certain subjects are avoided, withdraw certain posts, and remove inappropriate comments.