Workplace Law – The Round Up Elaine Jesurasingham, Partner George Tsogas, Solicitor 24 July 2014 Miller Harris in Business
Dec 25, 2015
Workplace Law – The Round Up
Elaine Jesurasingham, PartnerGeorge Tsogas, Solicitor
24 July 2014
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Insights into anti-bullying laws
Elaine Jesurasingham, Partner24 July 2014
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Quarterly report card The number of anti-bullying applications to the FWC has been
underwhelming
The FWC predicted 70 claims per week
For the first quarter of 2014, 150 applications were made
Of 150, eight cases were the subject of formal determination by the FWC
The FWC has adopted a conservative approach to determining if conduct is in fact bullying at work
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Overview of Fair Work Act Anti-Bullying Provisions
The legislation:
provides a single definition of workplace bullying
allows a worker to apply to the FWC for an order to stop bullying
the worker must be bullied at work in a constitutionally-covered business
allows the FWC to make any order it considers appropriate to stop the bullying, other than the reinstatement of a person or the payment of compensation or monetary amount
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Overview of Fair Work Act Anti-bullying Provisions
If a stop-bullying order is made and contravened, then:
the person affected by the contravention
an inspector or
industrial association
may apply to the Federal Circuit Court or Federal Court for the imposition of a monetary penalty, not exceeding 60 penalty units ($10,200.00)
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What is bullying?The Fair Work Amendment Act 2013 introduced a single definition of workplace bullying
Definition
A worker is bullied at work if:
while the worker is at work
an individual or group of individuals
repeatedly behaves unreasonably toward the worker or a group of workers
the behaviour creates a risk to health and safety
(section 789FD(1) of the Fair Work Act)
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Anti-bullying orders under the Fair Work Act 2009
What is excluded from the definition of workplace bullying? Single incidents of rudeness, differences of opinion or personality
clashes
Upset or concern about management practices or belief that an employer undervalues an employee
Reasonable management action undertaken in a reasonable way
The following must be satisfied:
the behaviour must be management action
it must be reasonable for the management action to have been taken
the management action must have been carried out in a manner that is reasonable
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Anti-bullying orders under the Fair Work Act 2009
Elemental parts bullied at work
the expression: at work is not defined
it is not necessary for the bullying to have occurred while the worker was actively engaged in work or at the workplace
the expression may extend to:
movement about or to and from a workplace
a host employer’s place of work
a work-related trip conducted outside working hours
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Anti-bullying orders under the Fair Work Act 2009
Elemental parts (continued) working from home
a work party
during a lunch break
the expression is broad and may include incidents arising out of or in the course of employment
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Anti-bullying orders under the Fair Work Act 2009
Elemental parts (continued) repeatedly unreasonable behaviour
there needs to be more than one occurrence of unreasonable behaviour
there is no specific number of incidents required (although more than one)
it is unnecessary for the same type of unreasonable behaviour to be repeated
there could be a range of behaviours over time
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Anti-bullying orders under the Fair Work Act 2009
Elemental parts (continued) unreasonable behaviour
a reasonable person having regard to all of the relevant circumstances must see the behaviour as unreasonable
Lord McMillan in Glasgow Corporation v Muir:
“Some persons are by nature unduly timorous and imagine every path beset by lions; others of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free from both over-apprehension and from over-confidence.”
the behaviour includes victimising, humiliating or intimidating behaviour, practical jokes, initiation ceremonies, unreasonable work expectations
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Anti-bullying orders under the Fair Work Act 2009
Elemental parts (continued) risk to health and safety
there must be a causal link between the behaviour and the risk to health and safety
it is unnecessary that the behaviour is the only cause of the risk
the behaviour must be a substantial cause of the risk
a risk to health and safety is not confined to actual danger
the risk element is satisfied by the possibility of danger to health and safety provided it is real and not simply conceptual
Case: Shaw v ANZ Bank [2014] FWC – 26 May 2014
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Who can make an application?A worker, who includes:
an employee
a contractor
an outworker
an apprentice
a trainee
a work experience student
a volunteer
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Who cannot make an applicationA person who is not a worker
unpaid work, including:
caring for a disabled relative and receiving a social security payment, is not work done for Centrelink
students performing work for teachers
domestic work performed for family members
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Against whom can an application be made?
Individuals whose behaviour has led to the application
The employer of those individuals
Visitors to a workplace, including: contractors
Visitors
regular members of the public
union representatives
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Anti-bullying orders under the Fair Work Act 2009
Concepts: Reasonable management action
management actions include omissions (section 12 of the Fair Work Act)
management actions have a wide meaning and include:
actions to effectively direct and control the way work is done
performance management process
providing fair and constructive feedback on a worker’s performance
investigating a complaint
taking disciplinary action
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Anti-bullying orders under the Fair Work Act 2009
What is reasonable?
Reasonableness of management action:
requires an objective assessment of the circumstances known at the time
considerations may include:
the circumstances that led to and created the need for the management action
the consequences that flowed from the management action
the specific circumstances and attributes of the employee which may include his or her culture, emotional state and psychological health
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Anti-bullying orders under the Fair Work Act 2009
The test is whether management action was reasonable, not whether it could have been better
Management actions do not need to be perfect or ideal
An overall course of action may still be reasonable, even if particular steps are unreasonable
To be considered reasonable, the action must also be lawful and not irrational, absurd or ridiculous
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Anti-bullying orders under the Fair Work Act 2009
Unreasonableness must arise from the actual management action rather than the applicant’s perception of it
Cases: Ms SB [2014] FWC – 12 May 2014
Tao Sun [2014] FWC – 16 June 2014
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What does the FWC do when an anti-bullying application is made?
The FWC must start dealing with the application within 14 days after lodgement
The FWC may take steps to inform itself about the complaint by contacting the employer or parties named in the application
A copy of the application will be given by the FWC to the employer and each person named in the application
The FWC may conduct a conference
The FWC may conduct a conciliation
The FWC may conduct an open hearing
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What does the FWC do when an anti-bullying application is made?
The FWC may refer a complaint to the state work health and safety regulator, but this does not mean that the FWC will defer dealing with the application while the referral occurs
The FWC may make a confidentiality order
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What orders can be made? The FWC’s powers are limited to preventing the worker from
being bullied at work
The focus is on resolving the complaint and enabling normal working relationships to resume
The range of orders the FWC can make include orders requiring:
individuals or a group to stop the specified behaviour
regular monitoring of behaviours by the employer
investigation by the employer
compliance with the employer’s anti-bullying policies
the provision of information and additional support and training to workers
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What orders can be made? relocation of the perpetrator or the bullied worker
ground rules or protocols to control future encounters and interactions
Case: Applicant v Respondent [2014] FWC – 21 March 2014
The FWC ordered an employee accused of bullying to:
have no contact with the applicant alone
make no comment about the applicant’s clothes or appearance
refrain from sending emails or texts to the applicant, except in emergency situations
complete any physical exercise at the employer’s premises before 8 am
raise no work-related issues with the applicant without first notifying the employer’s chief operating officer or his subordinate
The applicant was ordered to not attend work before 8.15 am
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What cannot be ordered? Reinstatement
Payment of compensation or monetary amounts
The payout of a fixed-term employment contract
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What does the FWC consider? The evidence of the witnesses (a strict approach has been adopted in
the published cases) – privilege against self incrimination applies
Outcomes arising from an external or internal investigation into a complaint
The result of a state regulatory body’s investigation
Any grievance or complaint procedures activated by the worker and the outcomes of those procedures
Compliance with employer’s bullying and complaint processes
Any other matters the FWC considers relevant – not bound by the rules of evidence
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A word about costs and appeals Parties who incur legal costs in an anti-bullying application
generally will pay their own costs
The Commission may order one party to pay another party’s legal costs if it is satisfied that:
the application or response to an application was made vexatiously or without reasonable cause
it should have been reasonably apparent that the application or response had no reasonable prospect of success
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A word about costs and appeals The application for costs must be made within 14 days after the
FWC finishes dealing with a dispute
A determination by the FWC may be appealed within 21 days of the date of the decision
The appeal is made to the full bench of the FWC and lies for an error of law or error of fact
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Tips for managers Adopt the four-step risk management model in the How to Manage
Work Health and Safety Risks – Code of Practice 2011
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Risk assessment model – control measures
The Work Health and Safety Act 2011 requires: the elimination of factors that may cause bullying or
if it is not reasonably practicable to do so, the risk of bullying should be minimised to the extent reasonably practicable
Once the psychosocial risk of workplace bullying is identified, control measures should be selected
Control measures may include:
a code of conduct
an anti-bullying policy
procedures to respond to bullying complaints
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Risk assessment model – control measures
train managers and supervisors to respond to workplace bullying
mentor new and poorly-performing managers and workers
offer an employee assistance programs
promote and reward positive leadership styles and teamwork
have effective systems for providing formal and informal constructive feedback, managing workloads and performance management
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Implementing control measures Rollout and publicise code of conduct, policies and procedures
Train workers in the code of conduct, policies and procedures
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Training matters A written record of training sessions, including topics covered, name of
trainer, duration and names of attendees should be kept
Training should be provided when:
a new employee joins the organisation
there is a new legislative or other change relevant to bullying
a bullying policy or procedure is significantly changed
there has been a bullying incident in the workplace
refresher training on at least an annual basis (training can be delivered in toolbox talks, staff meetings, emails, newsletters, attachments to payslips etc)
We have a complaint – guiding principles
The following guiding principles are important in the face of a bullying complaint:
act promptly
treat all matters seriously
do not victimise
do not prejudge
support all parties
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We have a complaint – guiding principles
ensure procedural fairness (natural justice)
communicate processes and outcomes
maintain confidentiality
keep records of each step taken in the management cycle
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A word about natural justiceNatural justice requires:
the person complained about is told the substance of all allegations against the person
the person complained about has an opportunity to respond to the allegations
A word about natural justice all parties to the complaint have a right to be heard
the person making a decision about the complaint acts impartially and honestly
the final decision is based on findings of fact that are supported by relevant evidence and sound reasoning – irrelevant matters must not be taken into account
standard of proof: balance of probabilities
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Managing sick or injured employees -
a complex webElaine Jesurasingham, Partner
24 July 2014
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Managing sick or injured workers
a complex web Failure to manage ill or injured workers can result in a smorgasbord of
actions against employers, including claims of:
disability discrimination
unfair dismissal
unlawful dismissal (owing to temporary absence from work on account of illness or injury)
adverse action
work health and safety obligations (to determine fitness for work)
breach of common law duty of care
invasion of privacy
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A natural starting point Ask the employee about the nature of his or her illness or injury
Request that the employee undergo medical examination
Directing that an employee attend medical examination will be a lawful and reasonable direction in the context of functional capacity, where:
frequent, lengthy or unexplained absences occur
further information about a known illness or injury is needed
there is a lack of information or inconsistencies in information about the employee’s health
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A natural starting point genuine concern by the employer and an employee’s fitness to
safely work
where medical certificates are non-specific or suspected to be false or fraudulently obtained
where a medical certificate is produced during the course of a disciplinary procedure as a reason for inability to participate in that procedure
It helps to have an employment contract term or policy dealing with independent medical examination
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Conduct of a medical examination
A suitable medical expert should be identified and fully briefed with a list of the inherent requirements of the job, pre-injury duties and specific questions to determine prognosis, diagnosis and functional capacity
Consider obtaining the consent of the employee to speak and/or obtain records from the employee’s treating doctor
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Conduct of a medical examination
Conduct of the medical examination (continued)
Seek the employee’s consent to the independent medical examination prior to directing that the examination occur
Take appropriate steps to ensure the confidentiality of sensitive personal information to be briefed to the independent examiner with the consent of the employee
The employee should be advised of the reasons for the medical examination
Provide a copy of the medical opinion to the employee (unless the doctor recommends against)
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Medical opinion to hand – What next?
Carefully consider the medical evidence, for instance:
Has the doctor answered all the questions?
Do the answers make sense?
Is clarification necessary?
Medical opinion may provide for accommodations or adjustments
Are the accommodations or adjustments reasonable or achievable or do they impose unjustifiable hardship on the employer?
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Medical opinion to hand – What next?
The question is: if reasonable accommodations or adjustments are made, will the employee be able to safely perform the inherent requirements of the role, and if so, when?
If not, dismissal may be justified
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Termination – beware! Workers’ compensation legislation may compel an employer to find
suitable alternative duties during a period of rehabilitation or return-to-work – beware of the modified duties becoming a new position with the employee
The Workers’ Compensation and Rehabilitation Act 2003 makes it unlawful to terminate an employee because of a work-related incapacity for a period of one year from the date of the incapacity
Where the incapacity for work is non-work related, a protection period of three months (either consecutively or in a series of absences) in a 12-month period applies
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Termination – beware! Dismissal of an ill or injured employee may be considered if:
the employee is not within a statutory protection period in respect of the incapacity
even with reasonable adjustments or accommodations, the employee cannot perform the inherent requirements of their pre-illness position
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Termination – beware! the employee is unlikely to perform the inherent requirements
of the pre-illness position in the foreseeable future or is the employee improving?
there is no obligation to provide alternative duties or a return-to-work under workers’ compensation legislation
There should be up-to-date medical evidence to inform these questions
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Termination – beware! If dismissal is an option, the correct processes of allowing an
opportunity for the employee to show cause should be given and includes:
advising the employee in advance of the show cause process
advising the employee to have a representative or support person
considering the impact on the employee and the employee’s length of service
listening to submissions made by the employee before making a final decision
providing written reasons for termination of employment
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Social media and the workplace
George Tsogas24 July 2014
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Social media policies in the workplace
What are social media policies?What risks does social media pose for
employers?How do social media policies assist
employers?What should be included in a social media
policy?
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What are social media policies?
Social media policies set out rules concerning the use by employees of social media platforms to ensure that such use does not negatively affect the employer, other employees or other parties associated with the employer.
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Risks to employersThe risks to employers of social media use
include:reduced employee performanceworkplace harassment and bullyingbreaches of rights to confidential informationdisputes about ownership of intellectual
propertybreach of copyrightliability for legal actions such as defamation and
misleading and deceptive conduct
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How can social media policies assist?
Discourage and reduce misuse of social mediaReduce legal risk to employersProvide basis for disciplinary action against
employees for misuse
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What must a social media policy include?
A clear definition of “social media”Specific details of what behaviour is and is not
acceptableConsequences of breaching the policyReference to other workplace policies and
procedures that apply to social mediaReminder of the risks of posting on social
media
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