A claim for breach of the general protections, or as it is otherwise known, “adverse action”, is the lesser known of two predominant claims brought by employees in circumstances where their employment is terminated. While most employers are familiar with the threat of an unfair dismissal claim, fewer understand the risks associated with taking adverse action against an employee.
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.
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.
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.
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.
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 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.
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.
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.
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.