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  • 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.“

  • Managerial Duties were not an “add-on” and the Award does not Apply – FWA Full Bench say in Unfair Dismissal Claim Appeal

    Manager Dismissed Not Award Covered

    Manager fails in arguing his managerial duties were simply an ‘add-on’ to his technical responsibilities, before FWA.

    A consultant, who became a manager, for a consulting firm, Thomas Duryea Consulting Pty Ltd, has failed to successfully appeal against a FWA decision of Senior Deputy President Drake, that his managerial duties excluded him from the unfair dismissal jurisdiction.

    The full bench, made up of Senior Deputy President Richards, Deputy President Harrison and Commissioner Cambridge, rejected the former manager’s argument that Senior Deputy President Drake was wrong in ruling that his managerial duties were not just an ‘add-on’ to technical responsibilities which thereby kept him under the coverage of the Professional Employees Award 2010. 

    The full bench found that Senior Deputy President Drake had correctly taken into account:

    –         the evidence of the Company’s Chief Executive;

    –         the former employee’s position description which outlined a range of managerial duties;

    –         the key performance indicators (KPIs) based on management of employees and finances and

    –         a remuneration framework “…of some $200,000 (exclusive of 9% superannuation) plus access to a $100,200 bonus upon achievement of a suite of management-related KPI’s”.

    The full bench said that Senior Deputy President Drake had correctly applied Australian Industrial Relations Commission decisions relating to assessing the “principal purpose” of a person’s employment.  The bench said that Carpenter v Corona Manufacturing Pty Ltd [2002] PR925731 established that an employee’s estimation of the quantification of their workload was not sufficient to determine a relevant award classification, “One reason for this (and there will be more) is that an employee might perform duties (where they are not closely supervised) which the employee prefers, or believes to be required, but which are not the duties the employee is necessarily directed (or employed) to perform…This is why the Full Bench articulated the task of ascertaining the principal purpose of the employment as requiring ‘an examination of the nature of the work […] the employee is employed to do’”.

    Mr Nicholas Menemy v Thomas Duryea Consulting Pty Ltd [2012] FWAFB 7184 (28 August 2012)

  • 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.

  • Fair Work Australia had no jursidiction to hear after-hours behaviour dispute

    Fair Work Australia has held that it has no jurisdiction to hear a dispute over disciplinary action taken against three coal-mining workers for alleged after-hours

    Fair Work Australia

    behaviour.

    One of the Thiess employees who worked at its Wilpinjong Coal Mine, in the Hunter Valley in NSW, was given a final warning, and the other two employees received written warnings after a bottle was allegedly thrown from the car in which they were travelling home from work in April 2012.

    The CFMEU (mining & energy division) made an application to Fair Work Australia under the dispute resolution procedure in the Wilpinjong Coal Mine Enterprise Agreement 2012, maintaining the allegations against the three employees were unproven, without factual foundation, and had not been properly investigated by the employer.

    Conciliation failed, and the CFMEU asked the tribunal to arbitrate the dispute. However, Senior Deputy President Hamberger said that while the dispute was “in the course of employment” and came within the ambit of the dispute resolution procedure, that procedure provided that only matters relating to:

    1. the NES, or
    2. pertaining to the 2012 Agreement,

    could be referred for arbitration.

    SDP Hamberger held that the dispute was about whether the Company’s policies and procedures had been complied with and/or applied in a fair manner, and the relevant clause in the agreement, “does not incorporate the policies and procedures into the agreement…Thus a dispute about a failure to comply with those policies and procedures is not a dispute pertaining to the agreement,” he said.

    CFMEU v Thiess [2012] FWA 6985 (21 August 2012) 

  • 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.

  • Child care worker loses dismissal case – arrived at work smelling of alcohol

    A child care worker summarily dismissed after attending work smelling of alcohol may have successfully challenged her dismissal if not for the previous warning she had received and the fact that she worked with young children.

    FWA Senior Deputy President Richards said the failure of the child care centre to stand the worker down and require her to attend to a doctor for a blood alcohol test before she could return to her duties might have otherwise led him to determine there had not been a valid reason for her summary dismissal.

    He said that employers cannot “rely solely on an apparent breach” of drug and alcohol policy or guidelines to provide a valid reason for dismissing an employee.

    “In other circumstances an employer might stand down an employee on an indefinite basis and not allow a resumption of work until a medical certificate indicating the employee was fit in all respects to resume the ordinary duties was provided. This approach has much to commend in the ordinary case.”

    However, it was determined that this was not an ordinary case, as the worker had been warned two months earlier after attending to work in a similar state that her employment may be jeopardised by a further occurrence.  Further, she was required to look after young children.  These particular circumstances, he said, meant that the employer had a valid reason for the dismissal.

    FWA determined that worker had “breached the employer’s confidence by her own admission, she had done so on the basis of full knowledge of the implications, and she had presented to her employer a risk that it could not reasonably manage” without removing her from the child care environment.

    Ms Kerry Nebauer v Jenni Daley T/A Johnny Crows Garden Childcare Centre [2012] FWA 6946 (17 August 2012)

  • Valid Reason for Dismissal but no Procedural Fairness Afforded

    FWA Decision

    The risks for employers in stringing out dismissal processes involving matters of serious misconduct have been demonstrated in Jones v Commissioner for Public Employment [2012] FWA 7069 (17 August 2012) where a Northern Territory Parole Officer failed to disclose during her recruitment that her husband was a parolee.

    Commissioner Steel said there was a ‘valid reason’ for her termination, but found the Officer was unfairly dismissed after not being afforded the necessary procedural fairness.

    The former Probation and Parole Officer was employed by Northern Territory Correctional Services on a 12 month contract from June 14, 2011.  It was anticipated that her employment would continue subject to completing a training course and satisfactory work performance.  However, several months later the Department became aware of her husband’s criminal record and parole status and began an exchange of letters which culminated in her termination in January this year.

    Fair Work Australia Commissioner David Steel found the Officer was ‘unfairly’ dismissed because her employer did not carry out a proper investigation into the matter and required her to maintain her duties while the issue was resolved.

    Background

    In the initial letter of 19 October 2011, the Officer was told her failure to disclose her husband’s criminal history raised concerns about trust and confidence, and that her employment may be terminated. In her response, the Officer maintained the paperwork had contained questions relating to her own circumstances, but not her spouse or family members. The paperwork included a document titled “Criminal History and Integrity Screening” which asked whether she had associated with persons that she knew “had criminal convictions other than in the course of carrying out professional duties?”

    The Officer said she had taken advice on the meaning of “associates” in relation to the question, but was “encouraged by others assisting her to gain employment” that she should interpret the term as normally applying in a business relationship context.

    She said she had been “open and transparent” in the interview process and had provided referees with knowledge of her husband’s status.

    In a second letter, dated 2 November 2011, the Department advised the Officer that it was not satisfied that she had been “open and transparent” and that she had avoided disclosure in completing the form.

    In the written communications, the Officer notified the Department of the increasing toll the accusations were taking on her health and wellbeing and that her confidentiality had been breached by the information about her husband becoming known among her colleagues.

    She received a fourth letter dated, 13 January 2011, saying that her employment was terminated with one (1) weeks’ pay in lieu of notice because of her failure to disclose the information about her husband and her failure to have responded openly and transparently in the subsequent communications.

    Commissioner Steel said there was a ‘valid reason’ for her termination, but found she was unfairly dismissed after not being afforded the necessary procedural fairness.  He said the Department had not carried out an investigation, met with the Officer or held any hearings or discussions with her.  This had meant there was also no opportunity for “representation or support persons that may have assisted the parties”.

    He described the conduct as “disciplinary process by correspondence“.  The Commissioner also took into account that the Officer had not been suspended during this period, rather had been required to continue to fulfil her role “in face of information from the applicant that her work situation was deteriorating and she considered the respondent was not meeting amongst other matters, their duty of care towards her“.

    The Commissioner ruled out reinstatement and awarded her 12 weeks pay.

  • Adverse Action Claim Costs Ruling

    A recent decision chal­lenging the commonly held view that adverse action claims are effectively ‘no costs’ matters under the Fair Work Act 2009 may have significant effect on future claims.

    In Cugura v Frankston City Council (No.2) FMCA 530, Federal Magis­trate O’Sullivan awarded costs to an employer (the Frankston City Council) from an employee who unsuccessfully pursued an adverse action claim.  This costs ruling signifies a departure from the general judicial reluctance to award costs in such matters.