Commission releases anti-bullying benchbook and model

New benchbook and case management model released

As detailed in previous newsletters, the Federal Government has introduced new anti-bullying laws which will come into effect as of 1 January 2014.

In order to assist with this new jurisdiction, the Fair Work Commission has released a benchbook to assist parties in lodging or responding to anti-bullying applications, which has been released as a draft for public consultation. Public comments can be submitted up until the end of December 2013.

The Commission has also released a case management model which summarises the procedures and associated functions to be adopted for the implementation of the new laws.

Draft benchbook

Because this jurisdiction has not yet commenced, the benchbook is based on decisions from other jurisdictions (primarily workers compensation, negligence and work, health and safety cases). The intention is to update the benchbook as appropriate once Australian cases are issued.

The benchbook sets out the basic mechanics of the new legislative provisions, including definitions of who is covered, what constitutes bullying behaviour, the process involved, the orders that can be made, the issue of costs and the appeal process.

Usefully, the benchbook also sets out a number of cases which demonstrate examples of conduct which have been found to constitute bullying. These cases derive from negligence and breach of contract claims, as well as work health and safety prosecutions.

The concept of ‘reasonable management action’ is also explored, with a summary of examples of conduct which may fall within this category based on prior case law (mostly based on workers compensation cases).

Case management model

The case management model sets out a number of comments about the new laws and the Commission’s role in managing the new jurisdiction. Some of the more pertinent comments include the following:

  • Anti-bullying orders cannot be made by the Commission in respect of former workers (eg workers who have left their employment). This is because an order can only be made if there is a risk of continuing bullying to the individual.
  • The Commission states that whilst it is difficult to predict the number of anti-bullying applications that will be made, it expects that there will be a significant number.
  • The legislation requires that the Commission start dealing with an application within 14 days of it being lodged. This may occur by the Commission informing itself through inquiries or requiring the provision of information from the parties.
  • Cases which indicate a significant risk to parties or working relationships will be prioritised.

In terms of process, the following steps will apply:

  • Once an application is lodged, it will be checked by the Commission and served on the employer/principal in order to obtain a response.
  • The individual whose conduct has prompted the application will also be given a chance to respond.
  • The ‘anti-bullying team’ within the Commission will then prepare a report which outlines whether the matter involves any potential jurisdictional issues, the nature of the alleged conduct, whether it is suitable for mediation, the degree of urgency and any other relevant factors. This report is provided to the Panel Head who will make a decision as to the assignment of the application.
  • The Panel Head then decides whether the matter will be assigned to a member and for what purpose (eg mediation or determination). The Panel Head may decide to hear and determine immediate preliminary issues (such as jurisdictional issues). The matter may also be assigned to a staff mediator if appropriate.
  • Mediation will be voluntary and confidential, and will only be proposed in appropriate cases. Conciliation is another possibility, and parties may be compelled to attend a conciliation conference. Mediation and conciliation conferences will usually be conducted in private, and the identity of parties will not be disclosed at this stage of the process.
  • Where applications do not settle following mediation or conciliation, they will be determined by an individual member of the Commission, unless the President decides to convene a Full Bench in relation to a specific matter.
  • Hearings will be conducted in public, unless orders have been made for private hearings. Members do however have some discretion as to the level of detail that is disclosed in their decisions concerns the names of the parties and the evidence.

Workdynamic Australia specialises in conducting investigations into matters such as workplace bullying.

 

This article was written by Lauren Barel, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

The High Cost of Failing to Prevent Bullying and Harassment in the Workplace

In a case which emphasises the importance of employers preventing and properly responding to allegations of bullying and sexual harassment, the Supreme Court of Victoria[1] has awarded an employee in excess of $1.3 million as result of her employer’s negligence.

The decision considered a claim by Ms Kate Mathews against her employer.  Ms Mathews alleged she had sustained serious chronic psychiatric injury caused by the negligence of her employer in failing to provide her with a safe working environment; and that her employer was vicariously liable for the tortuous acts of its employees and subcontractors.

The alleged offensive behaviour

Ms Matthews worked as a labourer for just under two years. During this period, Ms Matthews alleged that she was subjected to numerous offensive remarks and conduct, including examples such as the following:

  •  “You are a spastic, a bimbo”;
  • “Get out. You are fucking useless”;
  • “Kate, let’s put a pole in the yard and you can get it off”;
  • “‘I had a great wank over you last night”;
  • ‘CH’ said to Ms Mathews that he would like to throw her to the ground, ‘come all over her and then watch her lick it off;
  • Ms Mathews announced that she was going to lunch. C H said to her ‘I am going to follow you home, rip your clothes off and rape you’;
  • A subcontractor slapped Ms Mathews on her bottom.
Employer’s response to complaints

Ms Mathews argued that she was reluctant to complain to her foreman, as he was responsible for some of the offensive remarks. On occasions when Ms Mathews complained to the Area Manager, he said words to the effect of ‘leave it with me.’ however nothing appeared to have been done. Ms Mathews was moved to a different crew from September 2009 to June 2010 and then moved back to the original crew. Ms Mathews alleged that when she complained that she had been moved back to this crew, the foreman said ‘You will work with whoever I fucking tell you to work with.”

On 1 July 2010, Ms Mathews contacted who she believed to be Human Resources in relation to a threat of rape from ‘CH’. In response, the person who she reported this to invited her to “…come to my place in Warrandyte, and we will have a drink and talk about it”.  After this, she received a disturbing anonymous phone call. Ms Matthews has not worked since that date.

Employer’s admission of liability

The employer initially denied liability and alleged contributory negligence. However during the hearing, the company admitted negligence, and dropped its allegation of contributory negligence. The question of quantum was therefore the only issue to be determined.

Consideration of video evidence

The employer tendered three DVDs showing film of Ms Mathews taken covertly at different locations at different times. The employer argued that whilst Ms Mathews consistently presented to doctors in a distressed state, the films showed her to occasionally smile, engage with a shopkeeper, walk with her mother and talk on the telephone. The videos were also said to demonstrate that Ms Mathews was capable of sustained physical activities, specifically gardening and moving wheelbarrow-loads of wood around her house.

However Justice Forrest considered that caution must be exercised in evaluating such covertly recorded films in personal injury matters, particularly in cases related to psychiatric injury and stated that nothing could be inferred from the evidence.

Significant damages awarded

Justice Forrest found that Ms Mathews suffered chronic and significant psychiatric injuries that have and will continue to diminish the quality of her life. He also found that she suffered injury to her jaw (as a consequence of teeth grinding related to her psychiatric illness). It was determined that Ms Matthews had no capacity to work, and will not work again.

Justice Forrest assessed Ms Mathews’ general damages at $380,000. This amount included compensation for both her psychiatric injuries and her jaw injury. Ms Mathews was also awarded past economic loss of $283,942 and $696,085 for loss of future earning capacity until retirement age. This equated to a total payout of over $1.3 million.

Implications for employers

The significant damages awarded to Ms Mathews in compensation for her employer’s negligence, reflects the substantial impact that abuse, bullying and sexual harassment can have on an employee’s life. The case also highlights the risk faced by employers in failing to provide a safe work environment in terms of facing a time consuming and costly legal claim as well as embarrassing media coverage.

The decision has the potential to increase the likelihood of significant damages awarded in successful bullying and harassment cases. It is therefore critical for employers to have in place proper policies, procedures and systems to prevent and respond to workplace bullying and harassment – and for employers to properly implement such procedures.

The case highlights the importance of treating all complaints seriously and responding in an appropriate manner. Once an employer becomes aware of offending conduct, it must act to protect the employee from being subject to further offensive conduct. In matters involving serious allegations, it may be most appropriate to investigate the complaints internally or by engaging an expert external investigator.

 

[1] Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728

 

This article was written by Sarah-Jayne Myers, Senior Associate of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

 

Redundancy and adverse action

When a redundancy isn’t a redundancy: How the courts look into the mind of decision makers

The recent decision of the Federal Court of Australia in National Tertiary Education Union and Bessant v Royal Melbourne Institute of Technology [2013] FCA 451 provides useful insights into how the courts will look into the mind of decision makers to ascertain the “true” and comprehensive reasons for any decision. It shows the importance of ensuring that clear and unequivocal evidence is given by a decision maker regarding the entire scope of the reasons for the decision.

Failing to ask the question?

Professor Bessant was dismissed from her position as a Professor of RMIT purportedly on the basis that her position was redundant. Professor Bessant claimed that there was no genuine redundancy and the dismissal amounted to taking “adverse action” against her for reasons that included the exercise or proposed exercise of her workplace rights. Professor Bessant also alleged a breach of RMIT’s enterprise agreement. The “workplace rights” alleged by Professor Bessant arose from the long and troubled history between the parties, including a number of complaints or enquiries Professor Bessant had made regarding RMIT. These complaints included allegations of bullying against the head of the relevant School, Professor Hayward and complaints regarding breaches of RMIT’s enterprise agreement.

Under the relevant provisions of the Fair Work Act 2009 (Cth), once an applicant has established the existence of adverse action and a workplace right, the onus shifts to the respondent (in this case RMIT) to establish that the reasons for the action did not include the prohibited reasons.

RMIT’s position was that the Vice-Chancellor of RMIT, Professor Gardner was the sole person responsible for the decision to dismiss Professor Bessant. While Professor Gardiner was called to give evidence, she was not asked and did not give evidence that any of the reasons alleged by Professor Bessant were not reasons for the decision.
RMIT took the view that it discharged its onus by Professor Gardner’s positive testimony regarding the reasons for the dismissal relating to financial reasons. However, Justice Gray found that this was insufficient where the reasons for dismissal may be manifold finding:

Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.

Justice Gray went on to find that Professor Gardner’s evidence:

[was not] inconsistent with the possibility that Professor Gardner was motivated by reasons other than the purely financial ones she asserted.

This conclusion was strengthened by documents which listed that the reasons for the decision were “largely” or “primarily” financial and listed “central” reasons-opening the door to the conclusion that the other reasons related to the prohibited grounds asserted by Professor Bessant.

Redundancy as a tool to remove a troublesome employee?

Justice Gray found that the genesis of Professor Bessant’s dismissal arose from a decision of Professor Hayward that her position was “untenable” and there were two options to resolve this issue.

The documents prepared at the time showed that the position held by Professor Bessant was ‘targeted’ for redundancy, no criteria for determining what positions would be made redundant were developed, there was no information regarding how Professor Bessant was assessed in relation to any such criteria and a change in Professor Bessant’s role to a research only position was not properly taken into account. There was also what Justice Gray categorised as a “disturbing” absence of any contemporaneous account of the reasons of Professor Gardner for deciding that Professor Bessant’s position was redundant.

As a result Justice Gray determined that RMIT had failed to discharge its onus that the reasons for Professor Bessant’s dismissal did not include the prohibited reasons concluding that:

In effect, RMIT made use of its redundancy process to rid itself of an employee, who was considered to be troublesome, at least partly because she was prepared to exercise her workplace rights by making complaints about the behaviour of her immediate supervisor.

Justice Gray also found that the redundancy process breached RMIT’s enterprise agreement. RMIT was ordered to pay a total of $37,000 in penalties (payable to the NTEU) and to reinstate Professor Bessant with recognition of continuity of employment up to the date of reinstatement for the purposes of remuneration and other entitlements. No order was made in respect of costs.

Implications for employers

This case demonstrates the importance of properly documenting the reasons for any decision, ensuring that clear and comprehensive evidence is available if required. It also reminds employers of the dangers of using a targeted ‘redundancy’ program as an alternative to performance management.

 

 

This article is written by Jane Wright, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Landmark sexual harassment decision

Landmark decision heralds substantially increased general damages in discrimination cases

In a landmark ruling, the Full Court of the Federal Court has indicated that courts should acknowledge changed community standards and award higher compensation for general damages in discrimination claims. In this specific case, the Full Court increased the compensation for non-economic loss awarded to an employee arising from sexual harassment from $18,000 to $100,000.

The decision serves to reinforce the importance of preventing workplace discrimination and harassment.

The Original Decision

Last year, Justice Buchanan found that a female employee of Oracle had been sexually harassed by her male co-worker over a six month period in 2008. The employee claimed that the sexual harassment had caused her to resign from her employment and sought economic and non-economic damages.

The Court found that Oracle was vicariously liable for the conduct of its male employee and ordered the company to pay $18,000 for pain and suffering and loss of enjoyment of life. In this regard, it was held that Oracle had not taken ‘all reasonable steps’ to prevent the conduct.

At first instance, the Court rejected the claim for economic loss and found that there was no causal link between the harassment and the employee’s decision to resign from her employment and take a lower paid job.

The Appeal
The Full Court of the Federal Court (Justices Kenny, Besanko and Perram) upheld the employee’s appeal on both damages awards.

The key news for employers is that, in relation to non-economic loss, the Court found both that:

  • the damages awarded at first instance fell within the normally accepted range for sexual harassment litigation (which was said to be between $12,000 – $20,000 – with greater amounts awarded only for more egregious cases); and
  • the damages awarded were ‘manifestly inadequate’ and should be increased.

In reaching the decision, the Court signalled that community standards “now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before”.

While acknowledging that damages will be unique in each case, the Court pointed to several recent decisions outside the discrimination field where significant general damages were awarded, including:

  • Willet v Vitoria – $250,000 awarded to a former Police officer for pain and suffering;
  • Swan v Monash Law Book Co-operative – $300,000 awarded to an employee in general damages;
  • Goldman Sachs JBWere Services Pty Limited v Nikolich – $80,000 in general damages;
  • Walker v Citigroup – $100,000 in general damages.

In addition, the Full Court held that the sexual harassment suffered was a material cause for the employee’s decision to resign and awarded $30,000 in economic loss, which was calculated by reference to her loss of pay over a 3 year period.

The Court however rejected the argument that Oracle’s investigation of her complaint had caused her compensable losses.

This decision has the potential to, not only raise claimants’ expectations in relation to damages, but also increase the likelihood of significant damages awards in successful discrimination and harassment claims. It therefore reinforces the importance of employers taking all reasonably practicable steps to prevent these claims from arising. For example by:

  • having in place up-to-date policies;
  • conducting regular training; and
  • properly and prompting investigating all complaints.

These actions will serve to both encourage workplace harmony and leave you best placed to defend any claims that may arise.

 

Adverse action: It’s not so much what you did, it’s why you did it

Adverse action: It’s not so much what you did, it’s why you did it

In the world of adverse action, the reasons for a decision are key. Two recent cases reinforce that Courts will focus on the subjective reasons for an employer’s actions – leading to results which may surprise.  Namely, while a plan to implement broad organisational change was unlawful, a decision to dismiss an employee for taking genuine sick leave, despite being harsh and unfair, was lawful.

National Tertiary Education Industry Union v Swinburne University of Technology (No 2) [2015] FCA 1080

In October this year, the Federal Court in the above case fined Swinburne University of Technology for taking adverse action against its teaching employees in circumstances where it had commenced planning reforms aimed at improving the overall financial viability of the University.  While such a decision would often be considered within the prerogative of the employer, the Court noted that:

 “Part of that plan (I accept, not the whole of it) included a consciousness that the entitlements of employees … could be adversely affected if the proposal went ahead. Indeed the cost savings and more favourable industrial landscape for Swinburne (especially at the expense of its casual and fixed-term employees) were motivating factors in the proposal.”

Accordingly, although the planned reforms were not carried out, the University’s actions in threatening to make, and taking steps towards implementing, decisions relating to the planned reform amounted to a threat to the employees’ workplace rights, including the diminution of security and continuation of their employment.

In her consideration of the facts, Judge Mortimer relied on the University’s commercial planning documents which included that the objectives of the change were to adjust existing employee entitlements.

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

In this case, an employee who had his last minute application for annual leave rejected on operational grounds, said “Fine, I’m going to be sick anyway” and “I will get a medical certificate. You will find that very hard to challenge”.

The employee subsequently obtained a medical certificate and notified his employer he was taking personal/carer’s leave on the same dates he had initially sought as annual leave. After issuing a show cause letter and holding a meeting to discuss his conduct, the employer dismissed the employee for misconduct.

In dismissing the employee’s adverse action application, the primary Judge found that the employee had been dismissed because the employer did not believe he was sick on the days he was absent, and believed that he had been dishonest.  This was despite a finding that the employee had been genuinely sick on the days in question.

On appeal, the majority decision of the Federal Court upheld this ruling, confirming that the employer’s reason for the dismissal was the subjective belief that the employee had been dishonest, and not because he had exercised a workplace right.

In reaching this decision, the Court expressed concerns that the outcome was unjust, and noted that the applicant would have likely succeeded if he had instead pursued an ‘unfair dismissal’ application.   However, the majority of the Court found that the employer’s honest, albeit mistaken, belief was the real motivating factor for the dismissal, and that the application must therefore fail.

Lessons for employers

Employers must be mindful that the lawfulness of their conduct will not always be determined by whether their actions are reasonable or whether the outcome is fair.   These cases illustrate that a decision-maker’s subjective reasons will be jealously scrutinised.  A decision will be unlawful if, and only if, this analysis reveals that any adverse outcome is because of the existence, or exercise, of a workplace right.

 

This article was written by Jonathan Wright (Director and Principal) and Annette Tyrrell (Senior Associate). The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Use of personal email in the workplace

A recent case of the Fair Work Commission provides some useful insight into the use of social media and its potential impact on the employment relationship.

The facts

The Applicant in this case (Mr Barry Harvey) was employed by the company in question as an Environment, Safety and Quality Manager. After approximately 11 months of service, the company terminated his employment for a range of performance and conduct issues, which included a refusal to report for duty, a failure to perform duties, a lack of responsiveness to internal clients and staff, a failure to follow a reasonable direction from his manager (Mr Cain) and lack of respect and use of inappropriate language directed at Mr Cain.

Mr Harvey subsequently brought an unfair dismissal claim, arguing that he had not been informed in any detail as to the reason for his dismissal, and was not given an opportunity to reply. Mr Harvey resisted the performance and conduct issues that had been raised by the company, and claimed that he had been bullied by Mr Cain.

The company provided evidence as to the history of Mr Harvey’s performance and conduct issues. Amongst several other things, the company adduced evidence to show that Mr Harvey had used his LinkedIn account to send threatening emails to a person who may have been his ex-partner. These emails made specific reference to Mr Harvey’s position at the company, and the name of his employer.

Unfair dismissal claim dismissed

Senior Deputy President Richards dismissed the unfair dismissal claim, and held the following (amongst other things):

  • SDP Richards held that there was a valid reason for the dismissal, accepting much of the evidence put forward by the company. In particular, it was held that Mr Harvey showed no serious intention of responding positively to concerns that had been communicated to him about his performance and conduct, and remained defensive and aggressive. It was accepted that Mr Harvey was unable to conduct himself professionally, refused to participate in performance management processes and attempted to dictate the terms on which he would perform his work.
  • On the other hand, SDP Richards accepted that Mr Harvey had not been expressly informed of the reasons for his dismissal prior to the termination taking effect. This was in circumstances where the detailed reasons for the dismissal were only notified to Mr Harvey in the letter that confirmed the termination of his employment.
  • Because of point (2) above, Mr Harvey did not have an opportunity to respond to the reasons set out in the termination letter. It was accepted however that the reasons for the dismissal should not have come as a surprise given that there had been lengthy discussions about a range of matters during Mr Harvey’s employment.
  • Mr Harvey was given ample opportunity to address the company’s concerns about his performance.
LinkedIn email

Of interest, SDP Richards made specific reference to the LinkedIn email that had been sent by Mr Harvey which was held to ‘reflect poorly on [Mr Harvey’s] judgement’. SDP Richards held that even though the email was sent from Mr Harvey’s personal email account, it essentially ‘advertised’ Mr Harvey’s role as an employee of the company, and expressly referred to his position and the company’s brand. Mr Harvey was described as being ‘profoundly naïve’ to have included this information in an offensive email, and he should have been ‘sufficiently conscious of the need to preserve the good name and reputation of his employer’.

Lessons learned

Given the ever diminishing divide between the professional and personal lives of employees, this is a useful finding for employers who are increasingly affected by the actions of employees whilst using social media in a personal capacity.

To further bolster the ability to rely on social media activities, employers should consider implementing a social media policy which outlines the circumstances in which social media activities may impact on the employment relationship.

 

 

This article was written by Lauren Barel, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

The New Bullying Jurisdiction: Are You Ready?

In a rare moment of bipartisanship, both sides of politics are preparing to pass new laws relating to the prevention and resolution of workplace bullying. On 17 June 2013, the second reading of the Fair Work Amendment Bill 2013 (Cth) was moved in the Senate. Employers need to act now to ensure they are in the best position when the laws commence operating on 1 January 2014.

Key features of the proposed jurisdiction

When passed, the new laws will allow employees and other workers to make a claim to the Fair Work Commission in relation to allegations of bullying from 1 January 2014. Key feature of the news laws include:

  • workers will be able to make a claim if they reasonably believe they have been bullied
  • the Fair Work Commission will have broad powers to seek information, hold conferences and, if required, hold a full hearing and make orders against employers
  • the Fair Work Commission must not make orders without first considering the status of the employer’s internal processes (for example, any final or interim investigation findings and the employer’s bullying resolution procedures)
  • employers will need to be ready to respond to claims quickly, probably within 14 days
  • and breaches of bullying orders could expose employers to fines of up to $51,000. Importantly, the Commission does not have the power to make orders of compensation directly to the employee.

You can follow the progress of the Fair Work Amendment Bill 2013, by clicking here.

Reducing your risk

Working in tandem with these new laws will be the new Safe Work Australia Bullying Code of Practice. This document, which is nearing finalisation, will provide a best practice guide for employers in responding to workplace bullying. Importantly, an employer’s compliance (or more commonly breach) of this Code will be admissible in safety proceedings and may form the basis for action taken by safety officials.

The code calls on employers to implement control measures including training, policies and appropriate bullying response procedures. It also places an onus on employers to ensure that complaints are addressed by appropriately qualified personnel or external investigators.

Employers and other interested parties have an opportunity to make submissions on the draft Code by 15 July 2013. Workdynamic Australia can assist in drafting or reviewing any submissions to ensure that your views are structured in a way to achieve maximum influence.

For more information and links to the code and guidelines, click here.

What does this mean for you?

The delay in the implementation of these laws mean that employers have an opportunity to get their house in order. As a minimum, we recommend that organisations do the following:

  • review your current bullying policy, grievance and investigation procedures against the recommended standards set out in the draft Code
  • consider the last time your employees were trained on workplace bullying and acceptable behaviour in the workplace – is it time for a refresher? Are your employees and managers clear on the distinction between “reasonable management behaviour” and workplace bullying? If not specific training will reduce your risk
  • revisit the way your grievance and investigation procedures are “advertised” to employees. A perfect policy on a shelf that no one knows about will achieve little. Do all employees have clear guidance regarding who they should contact if they feel they are being bullied?
  • consider how indicators of bullying are monitored in your workplace. For example, is there a system where higher absenteeism and turnover rates are recorded and monitored? Are exit interviews reviewed for indicators of bullying?
  • consider the “resources” your organisation has to promptly and properly address complaints of bullying. In the words of the Code, do you have an “unbiased person who has experience and knowledge in the resolution of workplace bullying matters” or would this capability be enhanced by an independent external investigator? Having clear guidelines regarding when an external investigator will be used and a “short-list” of external investigators on hand will allow you to respond to complaints promptly.

 

Workdynamic Australia consultants are each legally qualified with over a decade of experience in drafting and reviewing bullying and grievance policies, training staff and managers and investigating bullying complaints. We would be happy to arrange a complimentary consultation to explore how Workdynamic can help you get ready for this new challenge.

 

This article was written by Jonathan Wright and Jane Wright, Directors and Principals of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Refusal of flexible work requests

The “toothless tiger” gets some teeth? FWC review of decision to refuse flexible work

The recent decision of the Fair Work Commission in Rind v Australian Institute of Superannuation Trustees – [2013] FWC 3144 (31 May 2013) appears to raise an additional concern for employers when refusing requests for flexible work on “reasonable business grounds”. The right to directly challenge the reasonableness of an employer’s decision under the “right to request” provisions of the Fair Work Act 2009 (Cth) (Act) was intentionally limited when the provisions where introduced. However, the Rind decision opens the door for the Commission’s review of these reasons under the unfair dismissal provisions.

Who initiated the termination of employment?

The Rind decision considered the jurisdictional objection of Ms Hanina Rind’s employer, Australian Institute of Superannuation Trustees (AIST), that Ms Rind did not meet the jurisdictional threshold to bring an unfair dismissal claim because she initiated the termination of her employment. Ms Rind argued that this threshold question was satisfied because AIST’s conduct constituted constructive dismissal.

The circumstances leading to this cessation of Ms Rind’s employment will be familiar to many employers. Ms Rind, whilst on her second period of parental leave, requested that she return to work on a graduated basis. AIST claimed that Ms Rind had originally agreed that this gradual return process would see her return to full-time work in January 2013, however it was accepted that by the time Ms Rind was to return she requested that she return on a part-time basis only.

Ms Rind made her request in accordance with a specific provision of an enterprise agreement that applied to her employment. This provision allowed an eligible employee to return to work part-time until their child reaches school age, and only enabled the employer to refuse the request on “reasonable grounds” relating to the effect on the workplace or business. In many ways, this provision mirrored the “right to request” provisions set out in section 65 of the Act.

AIST refused Ms Rind’s request to work part-time in writing and set out 10 “reasons” for its decision. These reasons included an assertion that the role was and is a full-time role, a need for immediate action to troubleshoot issues when they arise, the difficulties in communicating over email, the need for the specific resource on site, certain key projects earmarked for 2013, the fact that a project was compromised during Ms Rind’s absence, dissatisfaction of other staff, an inability to schedule “impromptu” meetings and a delay in deployment of projects.

Ms Rind attempted to challenge this decision through her union, leading to a proposal by AIST that Ms Rind could return part-time provided a suitable “job share” partner was recruited to cover the remaining days. When no suitable candidate was found in time, the parties entered into heated correspondence. AIST reiterated its desire for Ms Rind to return to work and defended the reasonableness of its actions, whilst Ms Rind’s representative asserted that the employer’s conduct had made Ms Rind’s continuing employment unviable.

Decision to refuse “not reasonable”

Commissioner Lewin confirmed that the standard test for constructive dismissal was whether the conduct of an employer is sufficiently inimical to the continuation of the contract of employment and the employment relationship.

Commissioner Lewin then sought to apply this “test” by considering whether the reasons given for refusing Ms Rind’s request were reasonable. After considering the impact of the external service provider used by AIST during Ms Rind’s absence, Commissioner Lewin found that it would have been reasonable for Ms Rind to return to work 3 days a week with further resources, if required, supplied by subsequent recruitment or contracted services.

Commissioner Lewin then tied this finding to the common law concept of constructive dismissal. He found that the enterprise agreement governed the relationship between employee and employer and a failure to comply with the terms of this agreement by requiring Ms Rind to “put up with a persistent and unreasonable refusal of her request to work part time” may be taken into account when determining whether the employer’s conduct was inimical to the contract of employment.

On this point, Commissioner Lewin found that:

What will be sensibly and reasonably judged to be conduct inimical to the contract of employment and the employment relationship must have regard to the gravitas of the relevant conduct. While rights to parental leave may be of recent origin in the long history of employment in Australia the right in this case is no small thing. Ms Rind’s parental circumstances fundamentally affected her capacity to work for the Company. The practical necessity of her right not to have her request to work part time until her second child reached school age unreasonably refused was essential for her continued employment to be viable. The parenting of her children was a matter of fundamental importance to her capacity to give efficacy to the contract of employment, which was formally recognised in the Enterprise Agreement.

While an opportunity for part time work on return from parental leave might not long ago have been considered a fortunate privilege, in my judgement, contemporary circumstances require a different view. Indeed, the importance of parental leave and in particular leave in relation to maternity has become a matter of vital public interest in various ways reflected in the Act and in the Award system. The matter variously attracts general legislative proposals in the public interest. Entitlements of employees are likely to vary and will be of great importance to pregnant women who conceive children while in employment.

On this basis, Commissioner Lewin found that AIST had constructively dismissed Ms Rinds and dismissed its jurisdictional objection.

Implications for employers

This case demonstrates the importance of properly considering requests for part-time work and documenting the reasons for any refusal. Whilst directly relevant to those employers who have provisions in their enterprise agreement relating to requests for flexible work, the reasoning could be extended to employees seeking to exercise their statutory “right to request” flexible work. In this way, an employee could essentially seek a Commission review of the reasonableness of the employer’s grounds for refusal, notwithstanding the legislature’s prevention of any direct review under the Act.

This exposure, coupled with the more “traditional” avenues of challenge (such as indirect discrimination on the grounds of carer’s responsibility) make this area of the law a continuing challenge for employers.

 

 

This article was written by Jane Wright, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Investigation into allegations of bullying at CSIRO

Following numerous complaints of workplace bullying, the CSIRO commissioned an independent investigation to examine the claims. Following a comprehensive investigation, a report into Phase 1 of this process was recently released. Reports such as these are rarely made public in their entirety, and the recommendations included provide valuable lessons for employers with respect to the prevention of workplace bullying and other unreasonable behaviour.

Such insights are particularly useful and timely given the preparations that employers should be currently undertaking in order to ensure compliance with new bullying laws commencing at the start of 2014.

The investigation

The investigation was originally instigated by numerous allegations by former CSIRO employees that they had been subject to bullying and other misconduct during their prior employment. In addition, the organisation had been issued with an Improvement Notice by Comcare, the body that administers workplace health and safety obligations for Australian government entities.

The scope of the investigation was unusually wide, in that both current and future staff members were invited to make submissions about any workplace bullying or unreasonable behaviour which they had experienced or witnessed at CSIRO at any time. Whilst the investigator was not able to accept submissions made on an anonymous basis, submissions could be accepted confidentially, meaning that the complainant’s details would not be passed on to the CSIRO.

The investigation took place over nearly 7 months, and involved 100 submissions which collectively related to 130 discrete allegations of bullying. The submissions were evenly split between current and former CSIRO employees and affiliates.

The report details the findings of the first phase of the investigation process which, importantly, did not entail any testing of the evidence by putting the allegations to the alleged perpetrators. Whilst Phase 2 will involve further investigation into some of the allegations, the investigator has not at this stage been able to make conclusive findings as to whether or not the alleged bullying occurred. For now, the most that can be commented on is whether the conduct, if it in fact occurred, would constitute workplace bullying or unreasonable behaviour.

Summary of outcomes

The outcome of this phase of the investigation can be summarised as follows:

  1. There is no major problem of workplace bullying or other unreasonable behaviour at the CSIRO. Whilst there are ‘pockets of concern’ which need to be dealt with, the work culture cannot be described as ‘toxic’.
  2. A number of aspects of the workplace involve ‘stressors’ which lead to poor behaviour, including funding pressures, performance management and redundancy processes.
  3. There are shortcomings in CSIRO’s policies and procedures for responding to complaints about bullying and other unreasonable behaviour.
  4. The application of the procedures for dealing with workplace bullying and other unreasonable behaviour has not been satisfactory and requires prompt attention by CSIRO.

The report also set out a total of 34 recommendations as a consequence of the submissions received. Whilst this article does not contain a full summary of all recommendations, certain highlights are set out below.

The importance of policies and procedures

A number of the submissions concerned complaints of inadequate administration of policy and procedure by CSIRO management and HR in responding to complaints of bullying. On this the Report states:

Workplace bullying is substantially affected by processes for handling and addressing complaints. The victim often speaks out as a last resort. Early intervention when poor behaviour is observed and a timely, serious response by those to whom the report of inappropriate behaviour is conveyed, principally human resource personnel, is critical to the effective resolution of workplace bullying. When the organisation does not have sound processes in place for the effective management and resolution of workplace bullying grievances, or when those processes are not appropriate for the circumstances presented (for example where the victim is experiencing a mental health crisis) the victim can experience profound feelings of isolation and the workplace response can exacerbate the harm. It is not uncommon for victims to consider the organisational response to allegations of bullying, as part of the bullying behaviours directed at them.

In many respects, the investigator found that CSIRO’s policies were overly complex and difficult to navigate, with certain gaps and inconsistencies.

The investigator also found that CSIRO tends to deal with complaints of bullying as ‘the victim’s problem’ rather than that of the organisation and recommended that various amendments to policies be made in order to address this. However, it was also stated that it is not sufficient to have good policies in place, and that the organisation needs to make a genuine commitment to take responsibility for bullying.

Utilisation of external investigators

The investigator was also critical of the CSIRO’s use of internal investigators in respect of formal grievances. The report states:

This is an issue that requires immediate attention and elimination. Internal investigations, which are not independent and are more informal than an external investigation, are not suitable for the resolution of formal (or informal) grievance complaints.

The investigator ultimately recommended that a clear directive be given to managers and HR that external investigations of formal grievances must be used instead of internal ones.

Training

The investigator also recommended that managers and staff undergo various forms of training to ensure that policies and procedures are adhered to, and that complaints are treated appropriately. Specifically, it was recommended that training occur in relation to misconduct and grievance procedures, dealing with staff who are suffering from a psychological illness and record keeping obligations.

Record keeping

Various recommendations were also made in relation to CSIRO’s practices with respect to record keeping. In particular, it was recommended that CSIRO establish a centralised database for recording both informal and formal complaints of bullying and other unreasonable workplace behaviour.

Implications

Whilst the outcomes of this investigation are clearly specific to CSIRO, employers can take general guidance from the recommendations that have been made. In particular, this type of commentary and critique is likely to be comparable to that which will be provided by the Fair Work Commission once the new bullying law take effect as of 1 January 2014.

In order to avoid the reputational issues that are associated with publicity of this kind, employers would be prudent to take stock of their policies, training modules and record keeping procedures insofar as they relate to bullying, misconduct and grievance handling. Employees should also ensure that all complaints of bullying are taken seriously and dealt with appropriately, including, where necessary, engaging external investigators to examine and test the allegations.

Workdynamic Australia offers a range of packages to help businesses prepare in advance for the new bullying jurisdiction.

 

Do Policies Create Mutual Obligations?

Two recent decisions have illustrated that company policies may give rise to contractual obligations on an employer. In both cases, the employer had detailed policies outlining the standards of behaviour required of its employees, however the language used meant that the policies, perhaps unintentionally, were incorporated into the employment contract and therefore also bound the employer.

The cases at a glance

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177 (22 December 2014)
Ms Romero was the second officer aboard a supply ship. Ms Romero had a substantial falling out with her Captain, following which she raised complaints about discrimination. Ms Romero left it open to Farstad to decide how to handle the issue.

Farstad published and promoted several policies, including a Workplace Harassment and Discrimination Policy. The policy set out standards of behaviour, various procedures for raising complaints, and how these complaints would be addressed.

At first instance, the Judge found that the policy was not contractual but contained ‘aspirational’ language as to how the employer will act. This finding was overturned on appeal. The Full Court noted that the language of this policy was sufficiently clear, it also noted that the:

  • employees were required to submit to an education program in relation to company policies;
  • employees were required to sign the policies;
  • policies were regularly enforced; and
  • the employee’s letter of offer stated ‘all Farstad Shipping Policies are to be observed at all times.;

The Full Court found that the context of the policy, and the language used, made it clear that the policy gave rise to mutual obligations, that is, ‘in return for the employee complying with the terms of the policy, the employer gives a responsive assurance that complaints of non-compliance by other employees will be treated in a certain way.

In relation to compliance with the policy, the Court accepted that:

  • the company improperly treated the complaint as a formal complaint (whereas the policy provided that this would be the employee’s decision);
  • the company failed to properly document the complaint and interview relevant witness; and
  • the investigation improperly combined the complaints of discrimination with the Captain’s counter allegations regarding Ms Romero’s competence.

In summary, the failure to carefully and systematically investigate the complaints amounted to a breach of the policy, and therefore a breach of contract.

Christos v Curtin University of Technology [No 2] [2015] WASC 72 (27 February 2015)
In May 2002, a lecturer activated the Curtin University of Technology’s grievance policy by making a formal complaint that he was being marginalised and humiliated by his department and school heads.

The University’s response to the complaints was impacted by:

  • a period of relative inaction from May to September 2002;
  • a complaint being raised against the lecture in September 2002, resulting in the lecturer being stood down;
  • the lecturer being on various forms of leave from November 2002;
  • the University’s reluctance to proceed with an investigation while he was on sick leave; and
  • disagreements in 2003 as to who should conduct the investigation, and whether the lecturer had adequately specified his complaints.

Ultimately, the investigation was abandoned when the Lecturer was dismissed in September 2004 in connection with pornographic material and illegally downloaded music being discovered on his lap top.

Following the decision in Farstad, the Court found that the University’s grievance policy imposed mutually binding obligations. However, in this case, the Court found that the actions taken by the University were reasonable responses and did not breach the policy. While some decisions may have been wrong in hindsight, they were not negligent, nor did they amount to a breach of contract.

Importantly, the Court found that claims relating to the period before February 2003 were statute barred. Accordingly, the University’s inaction was, ironically, not actionable.

Lessons learned

These cases serve as a reminder that policies are not always a ‘one way street’. In the absence of an express statement that policies are not contractual, they may well create obligations on the employer. For this reason, employers should review their policies and consider if they may be binding and if they offer the employer appropriate flexibility.

 

This article was written by Jonathan Wright, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.