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.

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.

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.

 

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.

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.

Recent legislative changes in the diversity space

Last week saw a flurry of parliamentary activity as important amendments were passed in respect of the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth).

In a recent publication, we detailed the new bullying jurisdiction which is set to commence on 1 January 2014, and which forms a critical aspect of the recent amendments to the Fair Work Act. This article will focus on some of the family friendly measures that will be implemented as a result of these amendments, as well as the Government’s efforts to enhance protection from discrimination on the grounds of sexual orientation and gender identity.

Fair Work Act Amendments

As part of the enhanced ‘family friendly’ measures, the legislation will increase employees’ minimum parental leave entitlements with changes which include the following:

1. Pregnant workers with less than 12 months’ service will be entitled to transfer to a ‘safe job’ in appropriate circumstances. Previously, this right only applied to employees with at least 12 months’ service.
2. If an employee takes unpaid ‘special maternity leave’ (e.g. because she is unfit for work due to a pregnancy-related illness), such leave will no longer reduce her entitlement to unpaid parental leave.
3. Parents will be entitled to take concurrent unpaid parental leave for 8 weeks (rather than 3 weeks).

The amendments also expand the circumstances in which an employee has the right to request flexible working arrangements. These provisions will extend to employees who are: parents or who have responsibility for the care of a child who is school age or younger, carers, disabled, 55 years or older, experiencing domestic violence or caring for a family member who is experiencing domestic violence. Helpfully, the amended Act will also provide some guidance as to the meaning of the term, ‘reasonable business grounds’, which is the basis on which an employer can refuse a request for flexible work arrangements under the Act.

From 1 January 2014, it will become mandatory for awards and enterprise agreements to include a term which requires an employer to consult with employees about a change to their regular roster or ordinary hours of work. In particular, employers will be required to consult with employees about the impact of any such changes on their family or caring responsibilities. However, the Explanatory Memorandum indicates that the requirement to consult under this new provision will not be triggered by a proposed change where an employee has irregular, sporadic or unpredictable working hours.

Further, when ensuring that modern awards (together with the NES) provide a fair and relative minimum safety net, the Fair Work Commission will be required to consider (amongst other things) the need to provide additional remuneration for employees working overtime, unsocial, irregular or unpredictable hours, weekends, public holidays or shifts.

A number of other changes will also flow from these amendments, including changes to the right of entry provisions.

Amendments to the Sex Discrimination Act

The same week also saw changes to the Sex Discrimination Act which represent an effort by the Government to introduce new protections against discrimination on the grounds of sexual orientation and gender identity. The key changes are as follows:

1. Sexual orientation, gender identity and intersex status will be added as new grounds of discrimination in certain areas of public life. The addition of ‘intersex status’ recognises that being intersex is a biological characteristic rather than a gender identity.
2. In an effort to protect same-sex de facto couples from discrimination, the existing ground of ‘marital status’ will be extended to ‘marital or relationship status’.

The Government is still considering the possible consolidation of Commonwealth anti-discrimination legislation, after an exposure draft of such laws was put on hold in March of this year.

What does this mean for you?

In order to ensure compliance with these new laws, employers should:

1. Review and amend their parental leave policies and practices to ensure that the new minimum entitlements described above are adhered to.
2. Train their managers to comply with the relevant procedure set out in the legislation when dealing with a request by an employee within one of the newly specified categories for flexible work arrangements.
3. Ensure that from 1 January 2014, employees covered by awards and certain enterprise agreements are consulted with before changes are made to their regular roster or ordinary hours of work.
4. Update equal opportunity policies to ensure that the grounds of sexual orientation, gender identity, intersex status and relationship status are covered.

 

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.

First bullying orders: A step too far?

On 21 March 2014, Senior Deputy President Drake of the Fair Work Commission made the first orders to stop bullying under the new jurisdiction.

The just over one-page decision provides no information regarding the circumstances that led to the orders being made beyond that it was agreed during a conference before SDP Drake on 4 March 2014.

The orders state that the employee who was the subject of the application (the alleged bully):

• shall complete any exercise at the employer’s premises before 8.00a.m;
• shall have no contact with the applicant alone;
• shall make no comment about the applicant’s clothes or appearance;
• shall not send any emails or texts to the applicant except in emergency circumstances; and
• shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

The applicant (the person who approached the FWC for the orders) was also subject to an order not to arrive at work before 8:15am. Leave was also given for the parties to approach the FWC should there be any difficulty with the implementation of the orders.

This was the first time the FWC published orders to prevent bullying behaviour. The scope of the orders and the level of specificity also raises a number of issues. How long are the orders in place? Does the FWC have jurisdiction to enforce the orders and, if so, to what extent and what “penalties” would be applicable for breach? How practical are the orders given (presumably) the parties have to continue to work together?

Certainly the orders involve an external party (the FWC) delving into and trying to regulate what many would consider are the minutia of the employment relationship and relationship between co-workers. There would be a real question whether, if challenged, such orders would be constitutionally enforceable.

There is also a degree of ambiguity in the orders that would be concerning to many employers. What is “exercise”? What constitutes a “work issue” requiring the alleged bully to notify the CEO? What constitutes a comment about a person’s appearance? As the orders were agreed, one would expect the parties themselves would have an idea regarding what prompted such orders and accordingly, their scope. However, to the outsider they may appear vague and expansive.

What is clear is that being involved in the bullying jurisdiction before the FWC potentially exposes an employer to broad reaching orders that can impact the way business is conducted. The best defence against such exposure is having a clear anti-bullying policy and resolution procedure, training staff regarding your expectations and investigating any bullying complaints appropriately.

 

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.

105 submissions were received by Safe Work Australia in response to the release of the second iteration of the draft model Work Health and Safety Code of Practice for Preventing and Responding to Workplace Bullying. Submissions were received from individuals, employee organisations and business groups. The themes arising from these submissions give an interesting insight into the issues Safe Work Australia will consider in giving guidance to business regarding preventing and managing workplace bullying.

A Code, guidance or delegated legislation?

At the invitation of Safe Work Australia, a key issue in a number of submissions was whether the document should be in the form of a Code or guidance.

Codes of Practice apply in States and Territories that have implemented harmonised work health and safety legislation (at this stage, harmonised laws apply throughout Australia except in Victoria and Western Australia). In most cases, following an approved code of practice would achieve compliance with the health and safety duties in the WHS Act, in relation to the subject matter of the code. Codes of Practice are also admissible in court proceedings as evidence of what is known about a hazard, risk or control and the Court may rely on the Code when determining whether the duty holder has met the required standard of care. If a Model Code of Practice prepared by Safe Work Australia is released regarding preventing and managing bullying it will apply in a jurisdiction when that jurisdiction has formally adopted that Code.

In contrast, a “guidance”, whilst useful in assisting duty holders on their obligations does not have the same evidentiary force as a Code. This allows duty holders to use the document as a reference guide but not necessarily incorporate each aspect of the document in their organisation.

At the other end of the spectrum, delegated legislation, more commonly known as a “regulation” has legal force such that compliance with the document is mandated by law.

Perhaps not surprisingly, the submissions were divided on the best “status” of the document with the vast majority of submissions from employee groups (and individuals) preferring the force of a Code whilst employer bodies prefer the flexibility offered by a guidance paper. The Australian Council of Trade Unions (ACTU) in its submission went one step further and called for bullying to be dealt with by way of a “Psycho-social Regulation” together with supporting codes of practice.

Main issues raised by employee groups

Employee groups were, again not surprisingly, concerned about any suggestion that worker representatives have only a “support” role to play in any workplace investigation. The ACTU called for employees to have the right to be represented by their worker representative and for the insertion of a specific requirement that all bullying investigations be conducted in accordance with the principles of natural justice.

Employee group submissions also sought to emphasise managerial responsibility to manage and control risks associated with workplace bullying rather than seeing bullying categorised as an “interpersonal conflict” primarily the responsibility of employees.

Main issues raised by employer groups

Aside from the status of the document, many employer group submissions were focused on the cost to business of complying with the Code and the uncertainty and risk for employers in dealing with bullying issues.

The requirements for bullying policies, training and maintenance systems and timely investigations into bullying complaints conducted by investigators were seen as overly burdensome and some claimed, impossible, for smaller businesses. One submission even called for a government “fighting fund” to be developed to fund these initiatives.

Other groups referred to the impracticalities of applying some of the recommendations to non-traditional worker arrangements such as labour-hire and subcontracting.

Employer groups also sought to highlight the difficulties for employers in managing psychological risks such as bullying as opposed to physical risks and called for guidance material to reflect this difficulty.

Implications for employers

As highlighted in a number of submissions, the draft Code does not expressly recognise the introduction of the new bullying jurisdiction in the Fair Work Commission from 1 January 2014, nor does it clarify how the draft Code could be a factor in any such proceedings. Whilst it is difficult to predict the ultimate status of the “Code”, one thing is clear. Irrespective of whether the document is released as a Code or guidance (or even regulation), an employer who now takes steps to meet the standards set out in the draft Code will be better placed to meet their WHS obligations and respond to bullying complaints come 1 January 2014. Workdynamic Australia offers a range of packages to help your business meet its obligations in relation to workplace bullying. Please do not hesitate to contact us for a solution tailored to your business’ needs.

 

This article was written by Jane Wright and Jonathan 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.

In a recent decision of Robinson v Goodman [2013] FCA 893 (2 September 2013), the Federal Court considered the circumstances in which “tendency evidence” is admissible. This is evidence from individuals other than the plaintiff regarding the defendant’s similar conduct towards them.

Evidence sought to be adduced

Ms Robinson sought to adduce evidence from other individuals (one of whom had their own case of sexual harassment at that time on foot against Mr Goodman) to show that Mr Goodman had a tendency to engage in a “calculated pattern of sexual pressure and harassment”, or a modus operandi of treating some of his female employees. Ms Robinson submitted the pattern or modus operandi was demonstrated by:

• touching female employees’ bodies without their consent;
• calling female employees pet names or nicknames that were unwelcome, of a sexual nature and/or insulting;
• making unwelcome statements about female employees’ sex lives, the sex lives of their partners or relatives, or his own sex life;
• requiring some female employees to adopt the role of his wife or partner during sample shopping trips, including using such occasions to purportedly legitimise other unwelcome conduct of a sexual nature including calling them names such as “hun”, “honey bun” and “honey” and touching, asking about or commenting on their bodies in a suggestive, sexual way;
• requiring or requesting some female employees to try on or model clothing samples including but not limited to jeans, underwear and swimwear in front of him at the company premises, at times or in locations when other staff were not present, despite their hesitation or objections;
• requiring certain female employees to be present at and assist with photography shoots featuring naked models, where a reasonable person in all the circumstances would have anticipated the possibility that the employees would be offended, humiliated or intimidated (“Bonnie shoot”);
• discussing what Mr Goodman perceived to be particular sexual characteristics of races or classes of people to which the employees’ family members belonged, in order to comment inappropriately on them; and
• commenting on employees’ relationships with their partners or spouses including making unwelcome and/or insulting comments about their partners.

Test applied by the Court

Justice Debbie Mortimer acknowledged that this was the first case in which the court had been asked to rule on the admission of contested “tendency evidence” in a proceeding dealing with allegations of sexual harassment.

After taking into account case law developed in respect of section 97 of the Evidence Act in respect of sexual offences, Justice Mortimer considered whether each piece of evidence sought to be adduced by the other individuals was of “significant probative value” so as to be admissible.

Allegations that were held to be “remarkably similar” such as evidence of a re-creation of a “Bonnie shoot” and inappropriate comments were held to be admissible, whilst allegations that were held to be insufficiently similar to any of the facts pleaded as material to the facts in issue were held to be inadmissible.

Implications

According to media reports Mr Goodman and Ms Robinson agreed to settle the proceedings “hours” after Justice Mortimer’s ruling. Mr Goodman also settled the separate sexual harassment proceedings brought by one of the other employees who was to give evidence for Ms Robinson.

The admission of similar fact or tendency evidence in sexual harassment cases can be a significant boost to a plaintiff’s case. It can make it easier for the plaintiff to demonstrate the sexual and unwelcome nature of the defendant’s conduct and reduce the propensity of defendants to seek to argue that the particular characteristics of the plaintiff contributed to the conduct.

Overall, this decision emphasises how important it is for employers to be aware of, and monitor, individual instances or allegations of sexual harassment to ensure that it is not the “tip of the iceberg” or that the conduct may occur again in the future. Exit interviews and monitoring of turnover and absenteeism records, as well as responding to and investigating any complaints of sexual harassment in a timely and proper fashion will reduce this risk.

Workdynamic Australia specialises in conducting investigations into matters such as sexual harassment and can assist organisations to address cultural or systemic issues before they reach the media headlines.

 

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.

Bullied employee awarded almost $600,000 in damage

A recent decision of the Supreme Court of Victoria in Swan v Monash Law Book Co-operative [2013] VSC 326 (26 June 2013) emphasises the importance of employers properly responding to and dealing with allegations of bullying. The significant damages awarded to the employee in compensation for her employer failing to protect her from bullying over a period of 5 years, demonstrate the impact bullying had on the employee’s life and the failure of her employer to adequately protect her health and safety.

The Swan decision considered a claim by Ms Wendy Swan against her employer, Monash Law Book Co-operative (MLBC), for pain and suffering and pecuniary loss for a psychiatric injury that she sustained in the course of her employment. Ms Swan alleged that the negligence of MLBC caused that injury by exposing her to an unsafe workplace in which she was subject to bullying, harassing, and intimidating conduct by her manager, Mr Cowell.

Defining the “bullying” behaviour

In this case, some instances of the bullying behaviour arose from significant interactions between Ms Swan and Mr Cowell. However, other instances arose from what Justice Dixon described as a conduct which was, “of itself, relatively innocuous” but was significant because of the “tone and body language of the speaker or the perception of an event that was experienced by one party or intended by the other”.

Examples of bullying behaviour documented in the decision include, Mr Cowell:

• repeatedly subjecting Ms Swan to sarcasm, hostility and rudeness
• throwing a book at Ms Swan’s head
• using foul and offensive language
• threatening to dismiss Ms Swan (when he had no authority to do so)
• disagreeing with Ms Swan in an inappropriate way regarding minor issues such as the placing of stock and use of post-it notes
• rudely interrupting Ms Swan and belittling her in front of third parties
• issuing unreasonable instructions such as directing her regarding how she answer the phone
• excessively scrutinising Ms Swan’s work and whereabouts
• automatically refusing any request of Ms Swan and refusing to provide reasons for the refusal
• providing instructions without explanation; and
• refusing to allocate meaningful tasks to Ms Swan in quiet periods

In terms of the overall atmosphere between the two, Justice Dixon commented that:

The plaintiff alleges that Mr Cowell created an intimidating atmosphere that he knew she found oppressive. Mr Cowell knew that the plaintiff felt intimidated and uncomfortable in his presence, but he didn’t care… Mr Cowell had a particular attitude, flowing from his personality. It is probable that Mr Cowell either positively disliked the plaintiff or simply did not care for her personal idiosyncrasies. In the crowded, cramped book room, which was mostly a private space for the two of them, Mr Cowell felt no compunction to treat the plaintiff with the level of respect that is reasonably expected and commonly afforded between two colleagues working together in such a space. It is out of personality conflict of this sort in that confined and isolated space, which cannot be fully analysed in a courtroom, that the repeating pattern of Mr Cowell’s conduct towards the plaintiff became unreasonable.

Events cumulated in July 2007 when, after disagreement regarding the placing of stock, Mr Cowell told Ms Swan to “get out of Legibook, and go and find another job, and just go away”.

Part of the contentious relationship between Mr Cowell and Ms Swan arose from a lack of clarity regarding Ms Swan’s role, with Mr Cowell alleging that his actions arose from his need, as Ms Swan’s manager, to direct Ms Swan and Ms Swan’s own “insubordinate” behaviour.

Ms Swan complained about Mr Cowell’s behaviour to her employer, the Board of MLBC on a number of occasions.

The employer’s response

Throughout the judgement, the Board of MLBC are shown to be adept at identifying the problem and its likely solution but slow in actually implementing their own recommendations. When first informed of the issues between the parties in March 2003, the Board resolved to settle position descriptions for the two employees and introduce workplace behaviour policies. However, despite re-enlivening this determination each time Ms Swan raised a fresh complaint against Mr Cowell, no such descriptions or policies were developed in the relevant period.

Justice Dixon noted in this regard that “the defendant’s witnesses offered no plausible or compelling excuse for their failure to act.” MLBC did try to connect some of their inaction to a request made at the time of the initial complaint by Ms Swan that the Board only “take her complaints on notice”. However, Justice Dixon on this point stated that:

The defendant pointed to the expressed desire of the plaintiff that her allegations be taken on notice. The need for fairness to both employees by investigating the situation seems to have been surpassed by acceptance of the plaintiff’s ‘choice’ to accept the board’s conduct as appropriate. On any view, it was the easy outcome. But that does not explain why they failed to follow through either with the process of job position descriptions, employment contracts, workplace behaviour policies, employee review and regular monitoring of the circumstances in the workplace or with an informal response.

Justice Dixon went on to find that MLBC’s conduct feel short of the expected standard in that it:

• failed to properly define the relations between it and its employees, and between its employees amongst themselves, and articulate its expectations concerning conduct in the workplace between employees, by job descriptions, employment contracts and workplace behaviour policies
• exacerbated its unreasonable behaviour in not introducing these measures by repeatedly misrepresenting to Ms Swan that they were imminent
• failed to appropriately train its employees and its own members to deal appropriately with such behaviour and complaints when it was occurring
• inappropriately relied on “choices” made by Ms Swan to not proceed when such choices were at least induced by their misrepresentations
• failed to make any assessment of Mr Cowell’s performance that included consideration of inappropriate workplace conduct or consider other appropriate measures to address Mr Cowell’s conduct. In fact the Board never even told Mr Cowell that his conduct was inappropriate
• failed to intervene and investigate when the complaints where first raised or some time thereafter
• failed to have a formal system in place enabling employees to seek assistance when bullying occurred- there was no complaints mechanism or system
• failed to arrange or conduct by itself any risk assessment or monitor the situation; and
• failed to have a safe return to work procedure.

Significant damages warranted

Based on an assessment that Ms Swan is suffering from a major depressive disorder and a generalised anxiety disorder, with features of traumatisation and has no realistic capacity for work in the future, Justice Dixon assessed Ms Swan’s pecuniary loss in the sum of $292,554.38 and $300,000 for general damages for pain and suffering and loss of enjoyment in life. Thus the total damages awarded were just short of $600,000. Costs awards may also be made against MLBC.

Implications for employers

This case demonstrates the high risk employers face in failing to have and implement proper policies, procedures and systems to prevent and deal with workplace bullying. The high damages award, particularly from what many see as a relatively conservative forum such as the Supreme Court of Victoria, may be an indication of a trend towards higher damages in bullying cases. This trend, coupled with the new bullying jurisdiction, makes it vital that employers act now to ensure their organisation is properly prepared.

 

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.