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General Protections

The Fair Work Commission Anti-Bullying Jurisdiction: Has the Fair Work Commission Stopped the Bullies?

Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”), the Fair Work Commission (“Commission”) has the power to make a ‘stop bulling order’ when a worker has been bullied at work, unless the alleged bullying conduct amounts to “reasonable management action” carried out in a “reasonable manner”. This jurisdiction, which commenced on 1 January 2014 with widespread community support and in particular from the Commonwealth government, has been in operation for over 4 years, and in this time, it has had much lower rates of utilisation than expected. Evidently, much the same can be said for the success rates of those who have pursued a bullying application through the Commission.

To this end, the Commission’s quarterly report for the October-December 2017 quarter, shows that 149 applications were made. However, all but 12 of these were withdrawn or resolved prior to going to final determination and of the 12, all were dismissed and only 1 anti-bullying order was made. It is much the same story for the first quarter of 2018, with 186 applications made, but only 12 reaching final determination, and again all, but one, were dismissed.

The Bullying Jurisdiction  

Before examining this area of the employment relations system more closely, it is important to understand the parameters of the anti-bullying jurisdiction and how it operates. In broad terms, to eradicate bullying in the workplace, the Commission has power under the Act to make any order which it considers appropriate to prevent a worker (who must be employed) from being bullied. The Commission does not have the power to make compensatory orders (payment of a monetary amount).

In order to obtain such relief, an applicant must demonstrate that that they were subjected to repeatedly unreasonable behaviour by an individual (or group of individuals) in the workplace and that the behaviour creates a risk to health and safety. It is also a requirement that the worker is employed, and that the alleged conduct not relate to past instances of alleged bullying as the Commission has no power to exercise its discretion retrospectively. This was affirmed in Shaw v ANZ [2014] FWC 3408 where the Commission declined to make a stop bullying order after Mr Shaw’s employment was terminated on the basis that there was no conceivable risk that the bullying would continue.

The ability of employers to defend bullying claims depends, in large part, on whether the alleged conduct can be properly characterised as “reasonable management action carried out in a reasonable manner”, which falls outside the scope of the Act. In this regard, providing constructive criticism in the context of a performance appraisal to address an underperformance issue will not necessarily constitute bullying provided the feedback is given in a reasonable way. The Commission has observed that reasonable management action need not be “perfect” in order to be considered reasonable, but it ought to be rationale and defensible. Importantly, in the recent decision of Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174, the Full Bench confirmed that the test of unreasonableness is judged objectively on the management action itself, rather than the workers’ perception of the relevant action.

The real strength of the jurisdiction is the breadth of order that can be made, and the Commission appears to be embracing this latitude. In circumstances where an applicant can demonstrate bullying and show that the conduct creates a risk to health and safety, the Act is silent as to the orders by which the Commission can address the improper behaviour. In this respect, the Commission has significant latitude in terms of dealing with anti-bullying actions and, to some extent, is not legislatively constrained from imposing creative or non-traditional solutions to prevent bullying from occurring in the workplace, including barring certain individuals from having contact with an applicant. For example, in Ari Kypuros [2017] FWC 3082, Commissioner Wilson issued an interim anti-bullying order restraining the co-owner of a tyre business and his employed nephew from communicating with or being within 10 metres of each other, noting that a separate court order for the nephew not to commit “family violence” against his uncle had done little to improve a long-standing combative workplace relationship. Similarly, in Lynette Bayly [2017] FWC 1886, the Commission granted an interim order which effectively acted as an injunction upon her employer from proceeding with a workplace investigation, which may have resulted in termination. In this regard, the Commission observed that it was appropriate in this particular circumstance to order interim relief as the employee concerned would be deprived of the ability to access the bullying jurisdiction once her employment had been terminated, and there was a real likelihood this would occur if the investigation was allowed to proceed.

Interestingly, the ambit of the bullying jurisdiction has, again, been redefined by the recent decision of McCutcheon v Fine Wine Wholesalers Pty Ltd [2018] FWC 3814 (“McCutcheon”). In McCutcheon, Deputy President Beaumont observed that the relationship and level of familiarity between colleagues may be a relevant consideration in determining whether, in fact, behaviour amounts to bullying.

In McCutcheon, the Managing Director, Ms Lawrence, and the Area Manager, Ms McCutcheon, formed a relationship, which Deputy President Beaumont noted, surpassed the ordinary limits to which co-workers themselves become acquainted. As such, the Commission established that there was a blurring of the line between the traditional relationship in place between a leader and a subordinate and was more in the nature of a relationship formed between friends.

In this regard, Ms McCutcheon claimed that Ms Lawrence’s actions, which included the following examples of alleged bullying:

  1. The spreading of untrue malicious and humiliating rumours in front of the sales team regarding her boyfriend and remarks about her appearance due to an allergic relationship, and when she “wore too much makeup” and looked like “Coco the Clown”;
  2. Advising staff to wear low cut tops to increase sales revenue;
  3. Informing Ms McCutcheon that she could not afford her wages if she did not achieve sales targets;
  4. Questioning Ms McCutcheon’s sick leave; and
  5. Causing the company’s workers’ compensation insurer not to pay Ms McCutcheon’s related benefits,

in her capacity as Managing Director, amounted to bullying.

In defence of Ms Lawrence’s action, Fine Wine Wholesalers Pty Ltd, disputed the claims. The Commission held that the only conduct that did occur were comments regarding the fact that Ms McCutcheon should be careful her boyfriend does not “break her heart” and that she preferred Ms McCutcheon have a more “natural” look. To the extent that the Commission found the conduct occurred, it found that the level of familiarity between the parties was such that the comments could not be deemed to be unreasonable behaviour constituting bullying within the meaning of the Act. In other examples where performance was an issue, the Commission relied on the legal authorities that held that “some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.”

Nevertheless, despite finding that the conduct did not amount to bullying, the Commission stressed that being well acquainted with someone in the workplace did not excuse inappropriate or unsafe conduct.

The cases that have been decided by the Commission in this jurisdiction indicate that it is difficult to predict an outcome but more often than not, final bullying orders are not made. The real issue for most employers is the costs involved in a claim and the fact that the Commission does have wide powers to make orders which may significantly affect the manner in which the employer continues to engage with its staff.

Lessons for Employers

There are a number of steps that employers can take to ensure they are prepared to adequately address bullying claims in the workplace, and to minimise their exposure to these types of claims, including:

  1. ensuring that workplace conduct policies and anti-bullying policies are in place and are regularly reviewed and updated;
  2. providing training workshops to both employees and managers in relation to appropriate standards of behaviour at work;
  3. conducting thorough reference checks when selecting line managers to ensure they are experienced in managing interpersonal conflicts;
  4. managing workplace behaviour proactively and treating every complaint of bullying seriously; and
  5. acting in compliance with policies and procedures when a bullying complaint is received irrespective of against whom the grievance is made.

Neglecting the issue of workplace bullying may, and in most circumstances, will inevitably make matters worse, which brings the prospect of an imposed solution by the Commission, rather than one that can be agreed between an employer and employee. In this regard, bullying claims, by their very nature, are inherently risky for employers from a reputational perspective. This is all the more reason to quickly and effectively address bullying before facing a potentially public hearing where the organisation’s ‘dirty laundry’ will be on display for the world to see.

If you are aware of a bullying issue in your workplace or wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

Employment law changes from 1 July 2017

The beginning of the financial year marks a number of important to changes to the employment law area. These changes, relate to minimum wages, penalty rates, the unfair dismissal threshold, annual leave and the Fair Work Information Statement. A summary of the changes to come into force from 1 July 2017 are outlined below.

National Minimum Wage and Modern Award Wages

Each year the Fair Work Commission (“FWC”) performs a review on the national minimum wage and pay rates within all industries. In this regard, the FWC has announced an increase to minimum wages by 3.3% which has now set the national minimum wage to $694.90 per week or $18.29 per hour effective from 1 July 2017.

In accordance with the national minimum wage review, all Modern Awards will also increase by 3.3% effective from 1 July 2017. This means that all Modern Award covered employees (including apprentices and trainees) who are receiving the Modern Award minimum pay must receive a pay increase of 3.3%. Modern awards have been amended to reflect the increase to wages. We encourage all employers to review their current wages and ensure the business is paying employees correctly and in accordance with the amended award wage rates, to avoid incurring any liability.

Penalty Rates

On 23 February 2017, the FWC handed down a decision to vary certain penalty rate provisions in some awards for the hospitality, retail and restaurant industries. The decision affects penalty rate provisions for some permanent and casual employees working Sundays, public holidays, evening or after midnight.

The Modern Awards effected by the penalty rate changes include the following:
• General Retail Industry Award 2010 [MA000004];
• Fast Food Industry Award 2010 [MA000003];
• Restaurant Industry Award 2010 [MA000119];
• Pharmacy Industry Award 2010 [MA000012];
• Hospitality Industry (General) Award 2010 [MA000009].

The changes will be phased in over 3 or 4 years, depending on the award and employment type. However, changes to public holiday penalty rates will start from 1 July 2017 as well as the changes to evening work and after midnight penalties in the Restaurant and Fast Food Awards. The changes to Sunday penalties will be introduced transitionally with the first phase rolled out on 1 July 2017. We encourage employers within these industries to review the changes and ensure they are keeping up to date with the transitional arrangements. For further information on the transitional arrangement please refer to: https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2017fwcfb3001-summary.pdf

Unfair Dismissal Threshold

The rules that determine whether an employee is entitled to bring a claim for unfair dismissal under the Fair Work Act 2009 (Cth) state that employees who earns more than the high income threshold and who are not covered by a modern award or enterprise agreement, cannot make an unfair dismissal claim.

Whether an employee is protected under the unfair dismissal scheme may have significant impact on an employer’s ability to dismiss an employee and the process and potential risks of doing so.

The Fair Work Commission have announced that the high income threshold will increase to $142,000 per annum from 1 July 2017.

Notice of taking annual leave by employee

The FWC has varied some awards to allow employees with excessive leave balances rights to give written notice to the employer requesting to take paid annual leave, in circumstances where they have been unable to genuinely reach an agreement. These changes will take effect from 29 July 2017.

Fair Work Information Statement

The Fair Work Act 2009 (Cth) requires that an employer provide all new employees a copy of the Fair Work Information Statement as published by the Fair Work Ombudsman before they start employment or as soon as practicable after their employment commences.

The Fair Work Information Statement provides employees information about their rights and conditions of employment. A new Fair Work Information Statement is published each year to reflect the amended high income threshold.

With a number of the above changes introduced this year, it is imperative for employers to ensure they are reviewing applicable Modern Awards and taking steps to implement the changes. This includes ensuring payroll and accounts departments also understand the key changes for the new financial year.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment relations framework, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.

CAN I HAVE MY CAKE AND EAT IT TOO?

On Wednesday and Thursday last week Shana Schreier-Joffe of our office was invited to attended and present at the Global Mobility and Skills Forum in Adelaide. This was an international conference designed to explore the challenges facing business in dealing with skill acquisition and an increasingly mobile workforce.

There were numerous very experienced and thought provoking speakers at the conference, however one of the speakers, Aaron LePoidevin made a number of comments that we think require further discussion and consideration. Firstly, he noted that when he graduated from university some 8 or so years ago, most young bright graduates’ dream jobs were with the big end of town. If you were a lawyer, you wanted to work with the global or top-tier law firms, if you were an accountant you wanted to work for the big four accounting firms, and if you were into investment banking, you wanted a job with the recognised Wall Street investment banks. This however, is apparently no longer the case. Now young, bright and energetic graduates would rather work for up and coming innovative boutique firms, looking for the next big thing.

For quite a few years now we have heard about how the generation Y and millennial generation are not going to be in the same job for the next ten years. They want flexibility, autonomy and excitement. They are also likely to change positions and even careers multiple times in their working lives. We often hear clients despair at the lack of loyalty shown by these workers and feelings of entitlement that make it difficult for employers to properly engage or incentivise these workers. But perhaps as Aaron’s next comment shows, many employers are just going about this issue the wrong way. What if employers embrace the changes that are happening, rather than adhering to the old way of doing things. Aaron pointed out that he was not only a partner at PWC but also sat on a number of advisory boards and was involved in a number of start-up businesses. Now no doubt Aaron is an exceptional young man with lots of energy and ability, but apparently what PwC seems to have got right is the fact that Aaron, and I assume many others like him, do not wish to be straight jacketed and want more than the linear traditional career progression, and have provided these opportunities within its current structure.

How does this work. As an employment law firm, one of the key terms in almost every employment contract is the fact that the employee owes all his or her time and effort to their employer. There really is no scope for employees to do their own thing. This is the source of much of current employee frustration and why boutique firm are now so appealing. They allow employees more freedom. But why can’t all employers incorporate some of these lessons. It appears that PWC (at least according to Aaron) allows its employees to work more flexibly so that they can spend some of their time on developing their own business ideas. In return they may take a small interest in the business the employee is developing. If this is correct, it is an absolutely brilliant idea as it allows ambitious employees the scope and freedom to develop their own ideas but keeps them within the fold. It generates goodwill, loyalty and possibly also a very healthy bank balance.

Traditional business models are in real need of review if traditional businesses wish to remain relevant and competitive. Many companies spend vast resources in updating their IT infrastructure, and marketing and product development (among other things) in an effort to ensure they remain competitive in an increasingly volatile and changing market. Employers should invest as much time and energy in ensuring that their people policies match the needs of the next generation of workers. However, as some of the discussion at the conference highlighted, not all traditional old school practices should be jettisoned. One interesting observation made by a participant was that in the particular university in which he worked, they had done away with the lecturers’ staff room and canteen. This was a place lecturers and other academics had traditionally gathered for a meal and inevitably discussion. Since its demise the level of interaction and cooperation between faculty had significantly diminished. There is substantial research which shows that some of the best ideas come from incidental discussion. This is why companies such as Google, Microsoft and the like have invested so much in ensuring employees have places to eat, shop and effectively take care of most basic needs at work. It means their employees work longer, BUT also interact more. Naturally this results in a greater generation of ideas and problem solving, which cannot be replicated by one employee working alone, or even many forced to “brainstorm” or perform collective problem solving on demand.

Rather than lamenting on the lack of loyalty, and the immediate desire for gratification and autonomy now synonymous with a younger workforce, employers should use these motivators as a way to engage and retain their employees. So, what can businesses do in this regard?

  1. understand what actually motivates your employees;
  1. structure work in a way that allows for employees to take risks and create some autonomy;
  1. encourage innovation in your workplace, whether this is big or small;
  1. consider allowing employees to pursue their own interests by the use of part- time work, flexi-time, sabbatical leave;
  1. recognise that your employees may actually be partners in the building of future ventures and allow for these opportunities; and
  1. allow space, time and opportunity for employees to get together incidentally (this is even more important for employees who work remotely).

What we think is most important is to listen to your employees and to have a business model that can adapt in this ever-changing business environment.

If you require advice or assistance in developing workplace policies designed to enhance your business’ capabilities and engage staff, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

Know Your Rights When Union Officials Knock On Your Door

Union right of entry laws are a cornerstone of our industrial relations system. Unfortunately, many employers can be caught out when a union official tries to visit their premises. It is especially vital for employers to understand their rights and obligations in this area, as unions do not have an unfettered right to enter, but nor can the employer improperly obstruct entry for a proper purpose.

RIGHT OF ENTRY

Union officials do not have an automatic right to enter workplaces.

Union officials can enter the workplace either by consent of the employer or if they have a valid right-of entry permit issued by the Fair Work Commission (“FWC”) and they wish to visit the workplace for the purposes of:

  • investigating suspected breaches of the Fair Work Act 2009 (Cth) (“FWA”) and/or other Fair Work instruments (such as a Modern Award or Enterprise Agreement);
  • meeting with employees (only those employees the union is entitled to represent) to hold discussion;
  • exercising work, health and safety rights (including investigating suspected breaches or safety obligations); and
  • investigating breaches relating to textile, clothing and footwear industry outworkers.

Notably, a union official has the right to enter premises for the purpose of exercising rights under the Work Health and Safety Act 2011 (Cth) (“WHS Act”) if they hold both a valid entry permit issued by the FWC (Fair Work entry permit) and a valid Work Health & Safety permit issued by the FWC known as a WHS entry permit.

ENTRY NOTICE REQUIREMENTS

Under the FWA, union officials must provide employers notice no less than 24 hours and no more than 14 days before the proposed entry into a workplace for the purposes of investigating a suspected breach of a workplace law, or to hold discussions with employees. The notice must also meet specific content requirements including the day of entry, the section of the FWA that authorises the entry, particulars of a suspected contravention (if any) and a declaration by the permit holder that they are entitled to represent the industrial interests of an employee who performs work at the premises.

In circumstances of suspected breach of the WHS Act, the requirements for entry are governed by the WHS Act. In such circumstances, prior notice does not need to be provided if entry is for the purpose of inquiring into a suspected contravention of the WHS Act. A WHS permit holder is not required to comply with the above notice requirements for suspected WHS contraventions if it would defeat the purpose of the entry or if it would unreasonably delay the WHS entry permit holder access to the workplace in an urgent case. The WHS permit holder must give written notice “as soon as reasonably practicable” after entering a workplace.

An employer can verify if a union official holds a valid and current entry permit by checking the register on the Fair Work Commission’s website: https://www.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit.

RIGHTS AND OBLIGATIONS WHEN A UNION OFFICIAL IS IN YOUR WORKPLACE

Union officials have specific rights once they have lawfully entered your workplace (or worksite). When investigating a suspected breach of the FWA or Industrial Instrument, an official is entitled to:

  • inspect any work, process or object relevant to the suspected breach;
  • interview any person who agrees to be interviewed and whom the union is entitled to represent, related to the suspected breach;
  • meet with employees if the employees are entitled to be represented by the union and willing to meet with the union;
  • access records of union members relating to the breach (records must be either kept on the premises or accessible from a computer kept on the premises); and
  • serve a notice requiring the production of records.

In relation to accessing documents and records, records must either be kept on the premises or accessible from a computer kept on the premises. Union officials do not have the right to request records of non-union members, except with the permission of the non-union member or by order of the FWC. Additionally, union officials cannot speak to employees during work time, discussions should be held during meal and other breaks.

The FWA provides that interviews or discussions may be held by union officials in rooms or areas of the premises agreed with the employer. If the union and employer cannot reach mutual agreement about where the discussions may be held, the permit holder is allowed to meet workers in rooms provided for meals or breaks. Furthermore, the union official must comply with any reasonable request by the employer to take a particular route to reach a room or area of the premises to hold the interviews or discussions. Permit holders are not permitted to wander around the premises at their discretion.

Union officials must also comply with any reasonable request by the employer to comply with an occupational health and safety requirement that applies to the site or work premises.

REFUSING ENTRY

It is an offence under the FWA, as well as under the WHS Act, for employers to improperly refuse or delay entry or obstruct a permit holder from exercising their rights of entry to a workplace. There can be significant consequences by way of severe penalties for such action.

RELEVANT CASE LAW

In Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Billiton Nickel West P/L [2016] FWC 3829 the FWC clarified union officials’ right of entry in relation to discussions held during ‘meal times and other breaks’. The CFMEU argued its officials could exercise their right of entry before and after employees’ shifts, as long as work was being conducted in the workplace at the time of the discussions. On the other hand, BHP argued that the period before and after an employee’s shift did not fall under the definition of ‘other breaks’ for the purposes of the FWA. BHP further asserted that the meaning of ‘other breaks’ was not defined in the FWA but that it should be given its ordinary meaning and be construed as a break “in work” and argued the period outside of working hours should be considered as ‘non-working hours’. BHP asserted that the union could meet outside employee’s working hours but the employer should not be unduly inconvenienced or required to facilitate such meetings.

Commissioner Williams applied a strict construction of the FWA provision and held that breaks meant interruptions in the continuity of an employee’s work, the suspension or stoppage of an employee’s work, or a rest from an employee’s work for a brief time. Consequently, the Commissioner sided with BHP and stated ‘other breaks’ does not include a period of time before an employee’s shift begins nor a period after the employee’s shift has ended. The Commissioner found that the CFMEU’s interpretation would create uncertainty as to when permit holders would have the right to enter the workplace and suggested that an interpretation which creates uncertainty as to the parties’ rights and obligations should not be preferred. The decision therefore confirms that occupiers of premises may refuse entry to a permit holder seeking to hold discussions with employees at the premises before or after normal working hours.

The decision of Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 highlights the necessity for employers to confirm that union officials seeking to enter the workplace are actually exercising their rights under the relevant legislation. This matter involved two CFMEU organisers, who entered the Abigroup Sydney airport site in June 2013. Both organisers had federal right of entry permits under the FWA and Queensland work health and safety authority. However, they did not have WHS permits under the New South Wales WHS Act. The CFMEU organisers sought to enter ‘to look at the site’ which was agreed by Abigroup Safety Co-ordinator on the condition they wear personal protective equipment (“PPE”). The union officials did not wait for the PPE and immediately entered the site whilst unaccompanied. The union officials then behaved in a disruptive and abusive manner, directing workers to cease work, stopping a concrete pour and delaying operations. While on site, although the organisers discussed health and safety issues, neither asserted that they were exercising any specific rights under the FWA or NSW WHS Act. Both also refused to produce entry permits when asked, did not advise that they did not have a NSW WHS permit and one of the officials claimed to be Steve Irwin “the crocodile hunter” when asked to identify himself.

Abigroup sought penalties against the union as a result of its officials’ actions. At first instance, Flick J of the Federal Court held that because both officials had purported to exercise a state WHS right under the NSW WHS Act and as a result had breached the right of entry provisions under the FWA. Flick J imposed penalties upon the organisers and fined the union.

The CFMEU and the union officials appealed the decision. On appeal the Full Federal Court overturned the decision of Flick J and held that the men were not exercising (or purporting to exercise) a right of entry under the FWA or NSW WHS Act because they never indicated that they were doing so and they did not have the appropriate right of entry permit. It was held that Abigroup could have refused the officials entry and asked them to leave. Had the officials refused to comply with a request to leave, this would amount to a trespass or criminal conduct to which they could have been prosecuted accordingly. It was found that because the men were not exercising a right of entry under either the FWA or NSW WHS Act they were not subject to the restrictions within the FWA and could not be prosecuted for breaching any of the FWA right of entry provisions. The Full Court quashed the penalties imposed by the Court at first instance.

In light of this decision, employers should ensure that union officials seeking to enter work premises are exercising their rights under the relevant legislation (or at the very least, purporting to do so). This will ensure they will be held accountable and bound to comply with the statutory regime regulating the behaviour of union officials exercising union right of entry powers.

PROPOSED AMENDMENTS TO RIGHT OF ENTRY LAWS

Employers have long complained that unions abuse their right of entry permits and often use trivial WHS issues as a basis to enter premises. Employers are also often frustrated by unions abusing their rights under the FWA to apply industrial pressure during enterprise negotiations.

The re-elected Turnbull government have announced they will pursue changes to workplace laws covering union right of entry. In August 2016, Employment Minister Michaelia Cash in her first speech post the election stressed the importance of “restoring balance to the right of entry laws”. It has since been confirmed the government has their sights on the following matters:

  • removing default access to lunchrooms for union officials visiting workplaces;
  • place sensible limits on union workplace visits;
  • give the FWC capacity to deal with union visits deemed “excessive”; and
  • repeal Labor’s changes requiring employers to provide accommodation and transport to union officials visiting remote work sites.

WHAT EMPLOYERS SHOULD TAKE AWAY?

With this mind, employers must ensure they are up to date with the laws in this area and properly understand the rights and obligations with which both employers and unions are required to comply, in relation to right of entry. This can be a valuable tool in managing these situations when they arise and mitigating any relevant disruptions to business operations.

A number of key points to remember include:

  • become familiar with right of entry laws and safety laws to ensure your workplace is meeting its obligations;
  • review your right of entry practices and policies;
  • remember to train your managers on the union right of entry laws to avoid any possibility of breaching the rules and facing severe penalties;
  • request to see and carefully inspect, original right of entry permits before allowing union officials into your workplace or on your site;
  • ensure that the notice provided by the union permit holder complies with the requirements;
  • try and agree with the permit holder a suitable place for meetings with employees;
  • escort the permit holder to the relevant meeting room; and
  • if there is a genuine work health and safety issue at your workplace, ensure it is taken seriously and reported to the appropriate authorities.

In the event you are faced with a right of entry situation, it is strongly advisable to seek legal advice to ensure compliance is achieved, both by the union concerned and the business.

If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice

Are Business Decisions No Longer those of the Employer? – The Potency of General Protections

When providing advice to employers regarding the disciplinary or performance management decisions they wish to make, we are often greeted with incredulity when we inform employers they need to be very careful how they conduct themselves, or they may fall foul of the law. This is especially true when employers have taken disciplinary or other adverse action against employees in circumstances where the employees do not have any unfair dismissal rights. It is not infrequent for us to have the comment: “But they cannot bring an unfair dismissal claim, so can’t I just terminate and give them notice?” Although, the answer to the question may be that as long as the terms of the contract are met, termination or other disciplinary conduct can proceed, this is not always the case, and failure to take into account the General Protection Provisions of the Fair Work Act 2009 (Cth) (“Act”), can mean significant adverse financial consequences.

Under the general protections provisions in Part 3-1 of the Act an employee who may otherwise not be entitled to commence a claim for unfair dismissal, may nevertheless be protected from dismissal or other forms of adverse action that they have suffered during employment. Adverse action is a very broad concept and can include for example discrimination, a disciplinary warning, removal or change of duties or demotion. In fact any action by the employer where the employee is able to successfully establish that they were prejudiced in their employment would constitute adverse action. However, in order to have a claim, the employee would need to demonstrate that the adverse action was taken because they exercised, or proposed to exercise, a workplace right, or to prevent them from exercising a workplace right.

Notably, the exercise of a workplace right need not be the primary reason for adverse action being taken against an employee, but only needs to be one of the reasons. In addition, where an employee can demonstrate an arguable case of adverse action based on the exercise of a workplace right, the onus shifts to the employer to prove to the Court that any consequential decision that may be have resulted in the employee being affected adversely, was not part of the reason for the action.

Adverse action can raise a number of challenges for employers and has increased the impetus for robust, well documented and sound decision-making processes that can withstand legal challenge. In order to better understand the framework of the general protections jurisdiction, one needs to examine the meaning of a workplace right, which encompasses a range of matters including among other things:

  • union participation rights;
  • rights to flexible working arrangements;
  • rights, benefits or responsibilities under a workplace law or workplace instrument or order made by an industrial body;
  • rights arising under the Act or other workplace instrument such as an Enterprise Agreement;
  • rights to initiate proceedings under the Act or participate in a process under a workplace law; or
  • the right to make a complaint or inquiry in relation to employment.

If an employee can show that as a result of exercising a workplace right their employer took some kind of adverse action against them, the Act provides generous remedies and other forms of relief including the potential to obtain penalties against the employer.

Although many management decisions may well adversely affect an employee, such action will not necessarily be unlawful if it is done for proper business reasons and not in response to the exercise by an employee of a workplace right. However, unlike the unfair dismissal jurisdiction, a general protections claim may be brought by an employee (or prospective employee) during the employment including where adverse action has been threatened, or after the employment has ended, provided it is commenced within the strict 21-day time limitation. In addition, any employee is able to bring such a claim. It is not limited to certain classes of employee as is the unfair dismissal regime.

In a landmark decision by the Federal Circuit Court delivered on 31 March 2016, an employee was awarded $415,000 in compensation after successfully arguing that his employer engaged in adverse action when it changed the status of his employment from full-time to part-time because of his workers’ compensation claim. In Cai v Tiy Loy & Co Pty Ltd [2016] FCCA 675 (“Cai”), the Court further imposed penalties against the employer in the amount of $50,000.

The potency of the general protections provisions is significantly illustrated by the decision in Cai.  Cai was  a tea attendant, who after almost 20 years of service, argued that he was forced to resign from his employment when his employer arbitrarily reduced his hours and changed his employment status to part-time as a consequence of him exercising the right to make a workers’ compensation claim. The Court found that the company had indeed prejudiced the employee by altering his position. It did so to reduce the extra cost incurred under the injury management plan required by the workers’ compensation scheme for full-time workers.

Given the employee’s personal circumstances, financial loss and inability to secure alternative employment, a significant compensatory order was made in the employee’s favour together with the imposition of civil penalties. In the decision, the Court noted that penalty orders were imposed to send a signal to the community that unilateral and disadvantageous alteration of an employee’s position, where the employee exercises a workplace right, will not be tolerated by the judicial system. Although in Cai, the employer had argued that it was unaware that it was unlawful to alter the employee’s employment status, and while Justice Manousaridis accepted this evidence, his Honour observed that the penalty was appropriate regardless of the employer’s ignorance of the law.

Given the very broad definition of workplace right to include an employee’s right to “make a complaint or inquiry in relation to his or her employment”, there is a very real risk that an employee can raise any grievance or concern that may loosely or indirectly be connected to their employment, and rely on that as the exercise of a workplace right to “make a complaint or inquiry”. However, this should not put employers off from taking appropriate disciplinary action or making managerial decisions that affect an employee’s interests, provided the decision is not being taken because of the exercise of a workplace right and this can be demonstrated. The critical issue, therefore, in defending management decisions is to ensure that a rigorous, clear and well planned decision-making process is undertaken and documented.

Some key learnings for employers arising from the legal authorities that have been decided under the General Protection provisions of the Act suggest that employers should consider the following issues:

  • what paper trail exists around the decision-making process by the relevant decision makers;
  • is the decision appropriate for the issue at hand and unrelated to any possible exercise of the employee of a workplace right;
  • have complaints or issues been properly investigated;
  • who within the business is involved in the decision-making process; and
  • who makes the final decision and how is it communicated to the employee.

Given the onerous evidentiary burden on employers to prove that the decision maker’s state of mind at the time the decision was made was not impacted by any workplace right that an employee had exercised, or proposed to exercise, it follows that the ability to successfully defend a claim will be greatly assisted if thorough records and documents around the decision-making processes and reasons for it is maintained including file notes, board minutes and other written correspondence. We also recommend that managers in positions of responsibility with the management authority to make decisions that may adversely affect employees, be provided performance management training to ensure they understand what is meant by a “workplace right” and how their decisions and conduct may give rise to legal claims, if they act in a manner inconsistent with the protections provided by the Act.

If you feel that you are being set up for a general protections claim, or require more information about your rights under the Act, please do not hesitate to contact our office for advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

“Sticks and Stones”: The Fair Work Commission Anti-Bullying Jurisdiction

Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”) the Fair Work Commission (“Commission”) has the power to make a “stop bulling order” when a worker has been bullied at work, unless the alleged bullying conduct amounts to “reasonable management action” carried out in a “reasonable manner”.

Despite being welcomed for providing greater legislative protection to workers against inappropriate workplace behaviour, the anti-bullying jurisdiction which commenced on 1 January 2014 has had much lower rates of utilisation that expected. The Commission has however delivered some key decisions which provide some clarification around its scope to address and remedy workplace bullying.

Before examining judicial developments in this area, it is important to understand the parameters of the anti-bullying jurisdiction and how it operates. Notably, the Commission can make any order that it considers appropriate to prevent a worker being bullied at work, other than compensatory orders (payment of a pecuniary amount) or an order reinstating an employee.

In order to obtain such relief, an applicant must demonstrate that that were subjected to repeatedly unreasonable behaviour by an individual or group of individuals in the workplace, and that the behaviour creates a risk to health and safety. It is also a requirement that the worker is employed and that the alleged behaviour not relate to past instances of alleged bullying. The Commission has no power to exercise its discretion retrospectively. For example, in Shaw v ANZ [2014] FWC 3408 the Commission determined that it had no jurisdiction to hear the matter and make any orders as Mr Shaw’s employment had been terminated.

The ability of employers to defend bullying claims depends in large part on whether the alleged conduct can be properly characterised as “reasonable management action carried out in a reasonable manner”. If this is the case, the conduct falls outside the scope of the anti-bullying provisions in the Act. For example, providing constructive criticism in the context of a performance appraisal, to address an underperformance issue, will not necessarily constitute bullying. However, the feedback must be given in a reasonable way. The Commission has observed that “reasonable management action” need not be perfect in order to be considered reasonable, but it ought to be rationale and defensible. Importantly, in SB [2014] FWC 2104, Commissioner Hampton confirmed that the test of unreasonableness is judged on the management action itself, rather than the workers’ perception of the action.

In circumstances where an applicant can make good allegations of bullying and show that the conduct creates a risk to health and safety, the Act is silent as to the orders by which the Commission can address the improper behaviour. In this respect, the Commission has significant latitude in terms of dealing with anti-bullying actions and, to some extent, is not legislatively constrained in its ability to impose creative solutions to prevent bullying from occurring in the workplace, including barring certain individuals from having unaccompanied contact with an applicant. Some of the orders that the Commission is able to make include:

  • directing the employer to ensure the bully not correspond with the applicant;
  • directing employees to commence or finish work at different times;
  • directing employees not to make comments to affected employees;
  • directing the employer to create or amend policies; and
  • directing an employer to conduct training.

In the recent decision of L.P [2016] FWC 763, Commissioner Hampton refused to issue an anti-bullying order against a well-known Adelaide restaurant because it implemented positive measures to tackle inappropriate workplace behaviour. In what might be an important development for this jurisdiction, however, Commissioner Hampton considered the possibility of the Commission restoring leave balances of workers who take time off due to workplace bullying. Although the question was left unanswered, Commissioner Hampton noted that the possibility of re-crediting leave would need be fully considered in the context of the Act and the National Employment Standards. As the argument was not agitated in these proceedings, it was found that it was not necessarily to decide the issue.

There are a number of steps that employers can take to ensure they are prepared to adequately address bullying claims in the workplace, and to minimise their exposure to these types of claims, including:

  1. ensuring that workplace conduct policies are in place and are regularly audited and updated;
  2. providing training workshops to both employees and managers in relation to appropriate standards of behaviour at work;
  3. conducting thorough reference checks when selecting line managers to ensure they are experienced in managing interpersonal conflicts;
  4. ensuring that line managers are appropriately trained in managing performance issues;
  5. managing workplace behaviour proactively and treating every complaint of bullying seriously; and
  6. acting in compliance with policies and procedures when a bullying complaint is received irrespective of whom the grievance is against.

Bullying claims, by their very nature, are inherently risky for employers. However, of far more concern is the ability for affected employees to commence proceedings for breach of contract, negligence or breach of work health and safety obligations, as a result of the employer failing to provide a safe system and place of work. Damage to an employer’s reputation is also a significant risk. We suggest that employers conduct an audit of their workplace culture and practices regularly to ensure that any instances of bullying, harassment or other inappropriate workplace behaviours are identified and appropriately eliminated.

If you are aware of a bullying issue in your workplace or wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

Unfair Dismissal: Avoiding a “Cash Grab” in the Fair Work Commission

In the last few weeks we have appeared in numerous unfair dismissal matters. The level of activity in this jurisdiction is not unusual given that in the period between October to December 2015 the Fair Work Commission (“Commission”) received a total of 3636 unfair dismissal applications. Why is this jurisdiction so popular? It may be due to the fact that 49% of all conciliations settle by way of a monetary payment to the employee within the range of $2,000 to $4,000, and 79% for a payment of less than $8,000. As is often the case, such payments are made because an employer wishes to make the problem “go away”, which can be extremely dissatisfying in circumstances where an employee has followed the appropriate termination procedures and best practices.

The unfair dismissal laws under the Fair Work Act 2009 (Cth) (“Act”) are premised on the notion of a “fair go all round” and are designed to prevent dismissals that:

  1. are “harsh, unjust or unreasonable”;
  2. are procedurally defective;
  3. do not comply with the Small Business Fair Dismissal Code (in the case of an employer who employs less than 15 employees); and
  4. are not cases of genuine redundancy.

Under the Act, a dismissal takes place where an employee is terminated at the initiative of their employer, or where the conduct, or a pattern of conduct, forced the employee to resign – otherwise, known as a constructive dismissal.

Termination of employment signifies the end of the relationship between an employer and employee except to the extent that the parties owe surviving obligations to one another. When an unfair dismissal application is validly made to the Commission within 21 days of the date of termination, an employee is essentially asking the Commission to assess whether the surrounding circumstances of the dismissal, and the dismissal itself, was underscored with some kind of unfairness, injustice or unreasonableness. The inquiry undertaken by the Commission is two-fold:

  1. did the employer have a valid reason for the dismissal; and
  2. was the dismissal procedurally flawed in some way.

However, before the Commission can determine the merits of an unfair dismissal action, a number of preliminary matters are considered as to whether the Commission has the jurisdiction to hear and determine the matter. Those considerations include an assessment of whether:

  1. the unfair dismissal application was made within the correct period required under the Act (minimum employment period of 6 months);
  2. the employee is able to commence proceedings because they were covered by a modern award or enterprise bargaining agreement;
  3. the employee was remunerated in excess of the unfair dismissal income cap (set at $136,700 for 2015) and is not covered by a modern award or enterprise agreement;
  4. if a small business, the dismissal was consistent with the unfair dismissal code for small business;
  5. the dismissal was a case of genuine redundancy; and
  6. the employee is excluded from making an unfair dismissal application because:
        • the employee was under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment was terminated at the end of the period, the completion of the task, or at the end of the season;
      • the person was an employee to whom a training arrangement applied, and the employment was terminated at the end of the training arrangement;
      • the person was a casual employee without ‘regular and systematic’ employment and an expected that they would be employed on a ‘regular and systematic’ basis;
      • the person was dismissed for ‘serious misconduct’;
      • the employee has not completed the relevant minimum period of employment; or
      • the person was an independent contractor.

Assuming that none of the above jurisdictional issues are raised by an employer, and the matter does not resolve by telephone conciliation in the first instance, the Commission will then arbitrate the matter with a view to examining the termination based on the following criteria:

  1. whether there was a valid reason for the termination related to the employee’s capacity, performance or conduct (including its effect on the welfare and safety of other employees);
  2. whether the employee was notified of the reason(s) for termination;
  3. whether the employee was given an opportunity to respond to any reason related to their capacity, performance or conduct;
  4. any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal; and
  5. if the termination related to unsatisfactory performance by the employee — whether the employee had been warned about that unsatisfactory performance before the dismissal and given an opportunity to improve;
  6. if the termination related to unsatisfactory performance by the employee – whether the employee was told a failure to improve could result in termination;
  7. the degree to which the size of the employer’s business would be likely to impact on the procedures followed in effecting the dismissal; and
  8. the degree to which the absence of dedicated human resources personnel would be likely to impact on the procedures followed in effecting the dismissal; and
  9. any other matters that the Fair Work Commission considers relevant.

The Commission ultimately exercises its discretion in carefully weighing up each matter above before forming a view, based on the evidence, as to whether the employee was unfairly, harshly or unreasonably dismissed. Inherently, the decision may result in a finding that the termination was harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. The findings of the Commissioners deciding these matters are often quite subjective and vary greatly. It is therefore often difficult to predict an outcome.

Given reinstatement is the primary remedy, where the Commission is satisfied that a person was unfairly dismissed, it will look at whether it is appropriate to reinstate the employee to their employment. In many cases, this does not occur due to an insurmountable breakdown in the employment relationship. As such, other available remedies, principally compensation orders are generally awarded. It is worthy to note that the maximum compensation that can be awarded by the Commission in the unfair dismissal jurisdiction is capped at the lesser of:

  1. half the amount of the high income threshold; or
  2. the total amount of remuneration received by the employee (or to which they were entitled) during the 26 weeks immediately before the dismissal.

However, it is generally quite rare for orders in excess of 6 months to be made, and usually such orders for maximum compensation are made in only the most grievous circumstances. This is not widely understood by both applicants or the employer, and the costs of running the proceedings to a hearing far outweigh any compensation order made.

In the recent decision of Cole v PQ Australia [2016] FWC 1166 (“Cole”), the Commission ordered compensation against the employer after it was established that a bullied employee was forced to resign after refusing to comply with an unreasonable request to be examined by a company-nominated medical practitioner. In Cole, the Commission heard evidence that the employee was subject to a barrage of emails, calls, text messages and covertly recorded conversations from his employer, who also failed to act after the employee raised complaints about a number of bullying incidents, including the erection of a noose over his workstation.

After providing his employer with a certified medical certificate in June 2015 for depression, the employee was suspended on pay on the basis that his employer was concerned about his welfare. Then, after the end of the stand-down period, the employee was directed not to return to work until he saw the company’s nominated doctor. By email, the employee was summarily dismissed for failing to attend the doctor’s appointment and purportedly not complying with a lawful direction.

The employee was subsequently informed that the company would pay him notice plus his statutory leave entitlements if he tendered a resignation letter, to which he declined. The Commission found that suspending the employee created considerable uncertainty and anxiety. Further, it was held that directing the employee to undergo a medical examination with the company doctor was unreasonable and part of a disciplinary process which the employee had no opportunity to respond. Based on the employee’s four years of service, job history and the circumstances of the dismissal, Commissioner Roe ordered the employer to pay compensation amounting to $43,900.00 to the employee, but considered reinstatement to be an inappropriate remedy.

As is evidenced by Cole, the unfair dismissal jurisdiction can nonetheless be an incredibly powerful and effective forum for a dismissed worker, particularly where the nature of the termination is comprised by one or more elements of unfairness, harshness or unreasonableness.

To reduce the degree of risk and exposure applicable to the unfair dismissal jurisdiction, it is critical to bear in mind the best practice procedures for handling terminations, including:

  1. being familiar with and applying workplace policies and other industrial instruments such as an enterprise agreement, HR manual or Codes of Conduct correctly;
  2. ensuring that the employee is told in specific language the issues and concerns with their employment, preferably in writing, and that a failure to improve may result in termination;
  3. that the employee is given clear guidance and direction to improve conduct and unsatisfactory performance to the expected standard – in other words, the issues are discussed;
  4. the employer acts reasonably and in good faith toward the employee;
  5. that adequate training and resources are made available to the employee to support improvement;
  6. if an employee’s job is at risk, that they are informed of that matter and given warnings;
  7. if a serious conduct issue comes to light, that the employee is given a reasonable opportunity to respond prior to any final decision being made;
  8. the employee is given the opportunity to bring a support person to any disciplinary process; and
  9. the employee is generally given ‘a fair go all round’.

Even though an apparently sound termination process has been followed, the risk of unfair dismissal is sometimes beyond an employer’s control. However, we do not suggest that “rolling over” is an optimal method for dealing with unfair dismissal claims. In addition, if a robust approach has been adopted, the unfair dismissal claim can be defended and often resolves at the telephone conciliation or the employee withdraws the claim thereafter. To avoid being seen as a “soft touch” – we suggest that defending the occasional unfair dismissal matter can have an important demonstration effect on the workforce.

If you have been dismissed, or have received an unfair dismissal claim, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

Managing Legal Exposure During the Silly Season

As the year draws to a close, many employers will be celebrating the end of 2015 with their employees, and other work colleagues. Work functions such as Christmas parties are a great opportunity to have fun with colleagues, but as is still too often the case, work Christmas parties can be a source of considerable distress and can cause significant loss and damage to the business and its employees. This is especially the case when inappropriate workplace behaviour put employers at risk of sexual harassment, bullying, discrimination and unfair dismissal claims.
Under work health and safety laws, an employer owes an overarching duty to take all steps reasonably practicable to prevent the risk of injury in the workplace. The same duty of care is owed generally under the common law. In the context of work Christmas parties, subtler risks can often be overlooked by employers such as the service of alcohol, at an employer’s expense, and the possibility of illegal drug taking and in some circumstances sexual misconduct amongst staff.
It is worthy to note that the meaning of a “workplace” has been extended through judicial decision to include not only a principal place of business, but may well include social gatherings at bars, restaurant or other public venues at which interactions amongst staff occur.
In this respect, and given the ability for sexual harassment and other claims to be commenced against employers as well as individual perpetrators under accessorial liability provisions provided for in various legislative instruments, it is imperative that employers take all reasonable steps available to them to provide employees with proper information, training and supervision to prevent such issues from arising.

Examples of recommended control measures include:
1. developing and implementing policies around appropriate workplace behaviours, and refreshing these expectations with your employees regularly and especially at this time;
2. consulting with staff in relation to your expectations of their behaviour at work Christmas parties and other social work events;
3. providing training to employees on their obligations under various legislation, including in respect of work health and safety; and
4. providing access to counselling and an EAP services.

In the event that a complaint or inappropriate workplace matter is raised about alleged misconduct at a work Christmas event, it is of vital importance that responsive action is taken quickly by employers. Such measure that ought to be considered, depending on the sensitivity of the issue, include:
1. providing counselling and support services to the complainant;
2. taking the matter seriously and properly investigating any incidence of inappropriate behaviour;
3. keeping the complainant informed as to the steps being taken to respond to the matter;
4. cooperating with Police and notifying the relevant safety regulators (if warranted);
5. investigating the matter fully either internally or via a third party investigation service;
6. notifying the employee against whom an allegation has been made and requesting their response; and
7. suspending the accused employee until all the facts have been gathered and a course of action has been decided upon.

In approaching these matters, practical strategies employers should otherwise bear in mind when responding to workplace complaints include:
1. avoid delaying the response time to allegations;
2. never assume an allegation is frivolous or vexatious without making inquiries;
3. consider all the evidence and then determine an appropriate disciplinary response;
4. document clearly and comprehensively your records at each step of the response process;
5. provide employees with counselling or an EAP services provider; and
6. communicate effectively and appropriate when dealing with sensitive workplace matters.
Our recommendation to surviving the silly season is to be honest with yourself as to whether everything reasonably practicable to provide a safe system of work has been considered, bearing in mind the broad definition of a workplace.

If any further information in relation to any aspect of this alert is required, please do not hesitate to contact us. Otherwise, we are available and ready to assist should you require any advice or legal support this silly season.

We wish you all well for a safe Christmas and prosperous New Year.

Anti-Bullying – What it means for Employers

The New Anti-Bullying Regime – What it means for Employers

palace_310x409The Fair Work Act’s new anti-bullying regime has now been in operation for just over 4 months. It was feared that there would be a deluge of claims to the Fair Work Commission (“Commission”), however this has not been the case. In the first 3 months of operation, there have been only 151 applications. The Commission’s report published last month, indicates that it finalized only 8 of those complaints and only issued orders on 1 occasion. Does this mean the jurisdiction has no teeth and is not as useful as initially anticipated in preventing bullying in the workplace?

In the two most significant decisions, the Commission has shown that it can have significant impact on the manner in which employers deal with these issues. Senior Deputy President Drake, in the Applicant v Respondent PR548852 (21 March 2114), made some far reaching orders that will affect the manner in which the employer now conducts its business. SDP Drake ordered that the employee, the subject of the bullying application must have no contact with the Applicant employee alone, cannot send emails or texts to the Applicant employee, cannot raise any work issues without notifying the COO or his subordinate beforehand, and that the employee and Applicant effectively have no contact with one another. These orders were not time limited. That is to say that they continue to have full effect until they are modified by the Commission. This means they will continue to have full effect possibly years after the decision.

In a decision made on 12 May 2104, the Commission clarified what is meant by “reasonable management action” and also shed some light on the role of external investigations, and their utility. The Applicant complained that she had been bullied by one of her subordinates and the acquiescence of her employer in that conduct. She also complained about the conduct of her manager and the conduct of the Human Resources staff. The Applicant had received 2 bullying complaints against her by 2 subordinates. The claims were accepted by the employer and investigated. Although, the employer concluded that there was no bullying by the Applicant, the Applicant alleged that it took no steps to prevent further complaints from being made, failed to prevent bullying by another employee and did not provided her with adequate support. The Applicant also alleged that the employer did nothing to prevent and protect her from malicious rumours in the workplace.

The Commission needed to determine firstly whether the conduct under examination was in fact behavior that was repeated unreasonable behavior. The Commission stated that what is required is “repeated unreasonable behavior by the individual or individuals towards the Applicant worker”. The Commission recognized that there is no specific number of incidents required for the behavior to represent “repeated”, provided there is more than one occurrence and nor does the same specific behavior need to be repeated.

The behavior needs to create a risk to the health and safety of the applicant. However, reasonable management action carried out in a reasonable manner does not constitute bullying. The commission stated that in determining whether the management action was reasonable and carried out in a reasonable manner requires an objective assessment of the actions in the context of the circumstances and knowledge of those involved at the time. The emotional and psychological health of the worker involved may also be relevant. The Commission stated that the test is whether the action is reasonable, not whether it could have been “more reasonable” or “more acceptable”.

The Commission found that the making of complaint against the Applicant and the investigation of those complaints was not unreasonable. In determining whether the Applicant had been provided appropriate support, the Commission concluded that the manager’s actions should have been more proactive, but were not unreasonable in the circumstances. The Applicant also complained about the manner in which her concerns regarding another employee were investigated. The employer had engaged an independent legal firm to conduct the investigation. The Commission concluded that although in part its conclusions differed from those of the independent investigator, the use of an external investigator and the manner in which the investigation was conducted was not unreasonable. The Commission concluded that the employer’s behavior was not unreasonable in the circumstances, and the limited unreasonable behavior of some of the employees concerned was not sufficient to create a risk to the Applicant’s health and safety.

The decision is useful for a number of reasons. Firstly, it clearly examines what can constitute unreasonable repeated behavior, and although it concluded that the employer’s behaviour was reasonable in the circumstances, it highlights the depth to which an employer’s business practices will be scrutenised by the Commission. Secondly, it recognizes the utility of independent investigations as long as they are carried out in an appropriate and reasonable manner. Lastly, it also an illustration of how the jurisdiction can be used by disgruntled employees who are not happy with the manner in which they are being treated by the employer or fellow employees.

Despite the relatively few cases that have come before the Commission since the introduction of the new bullying regime, the few cases that have been decided indicate that the regime can in fact have far reaching powers and have a real and immediate effect on the workplace. It is clear that the Commission will look closely at the manner in which an employer conducts itself and it internal processes and procedures. Clearly if these are lacking or carried out in an unreasonable manner, there is room for adverse findings. It is also clear that given orders that can be made against any workplace participant including other employees, the employer has an increased duty to ensure its employees behave appropriately.

We suggest that all employers take the following steps to ensure they are best placed to deal with any possible bullying application.

  1. Ensure their anti-discrimination, harassment and bullying policies are up to date
  2. Ensure all workplace participants receive training in appropriate workplace behaviours including bullying
  3. Ensure managerial staff receive training on what is meant by “reasonable management action” in the context of performance management and dealing with staff issues;
  4. Ensure that the company’s grievance resolution procedures are robust and are implemented when complaints are made;
  5. Ensure that human resources staff are appropriately trained in dealing with employee complaints and grievances
  6. Ensure that a proper investigation is conducted in circumstances where material complaints are raised.