The Repercussions of Strong Words in the Workplace

- Wednesday, May 25, 2016
The Repercussions of Strong Words in the Workplace

We see many cases where negative emotions arise at work. And it’s certainly not unusual for employees and employers to sprinkle angry discussions with yelling and/or expletives. Yet when does bad language warrant a strong reaction from the employer – or even dismissal?

Two recent cases demonstrate that violent or offensive communication can certainly lead to punitive repercussions. Of course, no two workplaces are the same and it is inevitable that some ‘blue’ language will enter a legal grey area. 

We examine the potential fall-out from angry (and sometimes threatening) words spoken in the workplace.
Case 1 – The Downside of Anger
In the matter of Hennigan v Xmplar Building Solutions, an Irish migrant worker was dismissed for using a phrase that the employer perceived to be particularly threatening. As background, the male Irish worker Hennigan was relying upon the employer’s alleged earlier undertaking to support his section 186 permanent residency application, as well as that of Hennigan’s partner.

The employer denied that any such undertaking had been made. Faced with being forced to leave Australia, Hennigan confronted the employer and unleashed a tirade of anger and accusations. Crucially, Hennigan uttered the phrase “I’ll fix you up,” which the employer took to be a clear threat. The worker was instantly dismissed. 

The Fair Work Commission (FWC) took evidence from both parties regarding the circumstances and meaning of the phrase used. The employer maintained that this was a clear threat by Hennigan to inflict some form of vengeful violence on the employer. Yet the worker’s representatives noted that in Irish vernacular, the colloquialism “I’ll fix you up” means something less aggressive and would not actually constitute a threat.

FWC Deputy President Kovacic decided in favour of the employer, noting the definite threat that was implied by the worker in promising to “fix you up.” In this way, instant dismissal by the employer was considered appropriate in the circumstances.
Case 2 – Extreme Language 
We were interested to see that in Hain v Ace Recycling, the FWC took a different view to an angry exchange between worker and CEO, which culminated in extreme insults and dismissal of the worker. 

The subject matter of the discussion centred upon overtime payments allegedly owing to Hain. Both Hain and the CEO swore during the conversation, using phases such as “f***ing money” and “not my f***ing problem”. 

The worker at some stage called the CEO an “old c***t.” The CEO later informed the worker via text message that he was dismissed. 

In examining the worker’s inappropriate language, FWC Deputy President Asbury conceded that this would ordinarily constitute a valid reason for instant dismissal. However, considering the employer’s own use of strong language and the inappropriate method of communicating the dismissal, the FWC established that the employer’s actions were unreasonable in the circumstances.
Careful With Our Words
Time and again we see situations where emotions have boiled over in the workplace. The outcomes in Hennigan and Hain demonstrate that when it comes to deciding dismissal cases, the FWC can indeed go either way in condoning the employer’s decision to dismiss. Important elements to be considered include the general culture of the workplace relevant to swearing, the size of an organisation, any danger or threats detected in a worker’s words, plus the manner of dismissal. 

It reminds us that clear policies around acceptable behaviour for everyone in the workplace are a must-have for all employers, regardless of size or industry. Similarly, we recommend to employers that an audit of their termination policies and procedures be undertaken regularly. This is vital to ensure that when dismissal becomes necessary, employers have up-to-date guidance on the best action to take in the circumstances.

For employers, instigating a dismissal will ideally be done with cool heads and reasonable actions. Swearing, yelling or threats by a worker are certainly all undesirable behaviours. Yet context is key in these situations; it pays for employers to look carefully at the bigger picture within which the conduct occurred.

If you'd like assistance with putting clear policies and procedures around acceptable behaviour into place, Wise Workplace can help.  Check out our new Workplace Investigation Toolkit and streamline your investigation process.

FWC Contradicting Public Expectations on Child Protection?

- Wednesday, April 06, 2016
FWC Contradicting Public Expectations on Child Protection?

Child protection and child abuse are issues of such a serious nature that they’re currently the subject of their own Royal Commission. But a recent decision of the Fair Work Commission (FWC) seems to fly in the face of the Royal Commission’s recommendations, as well as the advances in reportable conduct legislation in NSW.  
The FWC decision

O’Connell v Catholic Education Office is the case in question. O’Connell was a teacher who had been employed by the NSW Catholic Education Office (CEO) since 1979, in various teaching roles.   

In December 2014, allegations arose that he had behaved inappropriately towards a child. He was put on leave by the CEO. In February 2015, he was formally charged with indecently assaulting a child under the age of 16 years.   

O’Connell denied the allegation, and asked for alternative duties, suspension or leave until the charge was determined. The CEO instead terminated his employment.   

In August 2015, the charge was withdrawn.   

O’Connell claimed that he had been unfairly dismissed as the CEO could have arranged for him to work in an alternative role, pending the charges being determined.   

The CEO claimed that once O’Connell had been charged, he became a “disqualified person” under the Child Protection (Working with Children) Act (the Act). It had no choice but to terminate, as the Act prohibited his continuing employment in child-related work.   

The CEO used this as a jurisdictional argument – as there was no unfair dismissal, the FWC could not determine the matter.   

The matter was heard by the full bench of the FWC.   

Untangling the web of legislative language  
The FWC said that its duty was to give the words the meaning that had been intended by parliament.   

It found that there was no barrier in continuing O’Connell’s employment – he could have been redeployed to other duties that involved no contact with children.   

It also found that parliament was unlikely to have intended termination of employment whenever there needed to be further inquiries about a child protection matter.  This could have disastrous consequences for many innocent workers.   

The FWC looked to the second reading speech of the Act to determine parliament’s intention:

“Employers with the capacity to do so may suspend a barred worker or redeploy such a worker to a non child-related role.”    

Because termination was by choice and not mandated by legislation, there was jurisdiction for the FWC to hear the unfair dismissal claim.   
Inconsistency with other decisions
FWC considered the decision of Mahony in which a teacher’s employment contract had been frustrated because the criminal charges against him meant that he could not work with children.     

It found that the Mahony decision had been made without the benefit of extensive submissions that could be considered before reaching a conclusion. The FWC said it was not bound by Mahony.   

It also considered the case of Fraser, in which it was found that employers have a choice about whether to comply with or ignore laws requiring termination of employment. It said that this decision was wrong.  

What does it all mean?

The FWC has made it clear that its  O’Connell decision is now the authority for similar matters.

But it seems at odds with NSW’s working with children police check requirements, which are considered some of the most rigorous in all of Australia. This was particularly evident in the case of BQY, who eventually won the right to become a registered teacher after a fairly minor encounter with a former student.    

There is also anticipation that the Royal Commission will recommend that uniform child protection laws are established in Australia. This, along with the recent inquiry into how reportable conduct legislation has been operating in NSW over the past 16 years, now makes the law in this area very uncertain.   

The FWC decision is unlikely to sit easily with the other anticipated child protection changes, but as a full bench decision, it carries great weight. It may be a case of parliament having to make changes to the wording of the legislation to ensure that the law falls into step with public expectations and is consistent with political response to this very important issue.   

Mitigating Factors and Dismissal - What is Relevant?

- Wednesday, March 16, 2016
Mitigating Factors and Dismissal - What is Relevant?

If you’ve ever conducted a disciplinary interview with an employee, you may have asked them if there are things they’d like you to take into account when making your decision about how to handle the matter.  

These are often referred to as ‘mitigating factors’, and are an important part of the disciplinary process. But we find employers can be uncertain about the concept, and what is relevant. 

And rightly so – mitigating factors are fluid, changing and evolving depending on the circumstances of a matter.

the Legislative basis for mitigating factors

The Fair Work Act sets out the criteria for the Fair Work Commission (FWC) to consider whether a dismissal is harsh, unjust or unreasonable, including whether there was:

  • A valid reason.
  • Procedural fairness.
  • Opportunity for the employee to be represented. 

It also requires that the FWC consider “any other matters that [it] thinks relevant.” 

This is the provision under which the FWC will consider mitigating factors – any background circumstances that might explain the conduct or reduce the severity of the penalty for the employee.

It is a deliberately vague provision, as mitigating factors could include just about anything, depending on the circumstances of the individual. 

Employers must consider these factors

Because the FWC must consider mitigating factors when determining an application for unfair dismissal, it follows that employers must also consider mitigating factors when making disciplinary decisions, including whether to terminate employment. 

This also serves as a reminder to employers that when deciding whether to terminate employment, all of the employee’s circumstances need to be taken into account to arrive at a “reasonable” decision. It is especially important to ask the employee whether there are any matters that they would like to be taken into account.

The importance of this was highlighted in the recent decision of the FWC in Mary-Jane Anders v The Hutchins School.
A real world example
Anders was a maths teacher and an academic administrator, employed by the school. She reported struggling with her workload and not long afterwards suffered a breakdown and took leave. After returning to work, she again broke down and took further leave. 

In the meantime, the school had removed her from her administrative role. She took issue with the allocation of classes that she was to teach. 

Her relationship with the school’s leadership broke down, and some of her colleagues refused to work with her. She used social media and emails to colleagues to vent her concerns.

The school’s deputy head terminated her employment following an investigation, citing a total breakdown in the employment relationship. Anders claimed unfair dismissal in the FWC.

The FWC made findings about bias, but also found that there were some significant mitigating factors which the school ought to have taken into account when investigating the matter. These included:

  • Anders’ previous good employment record. 
  • Her mental illness diagnosis.
  • Her husband’s critical illness at the time when allegations were first raised with her.
  • The school’s failure to address earlier problems in the relationships between Anders and some of her colleagues.

In light of these factors, the FWC found that, even though Anders’ emails and social media comments were poorly judged, the termination of her employment was harsh and there was no valid reason for dismissal. 

But even so, because her relationship with the school was so broken down, the FWC awarded compensation instead of reinstatement. 

The need to take mitigating into account

This decision is a reminder to employers of the importance of taking into account any mitigating factors. If an employee’s conduct is out of line or serious enough for termination to be considered, employers should do everything possible to get to the bottom of the matter. 

In our experience, the more thoroughly employers try to understand an employee’s conduct, the more likely the employer’s investigation will be seen as fair and reasonable. For further information about mitigating factors and how to address them, WISE Workplace can help. We’re just a phone call away. 

Undercurrents of Bias can Drown an Investigation

- Wednesday, February 24, 2016
Undercurrents of Bias can Drown an Investigation
In the often stormy seas of workplace investigations, the issue of investigator bias lurks in the undercurrents, a trap for the unwary employer.   

One of the most regular complaints we hear from people who have been the subject of an investigation is that the investigator was biased and the decision was predetermined, and they had no chance of a fair hearing.  

It doesn’t really matter whether bias is real, it is the perception of bias that undermines the investigation process and can keep employers working with ‘problem’ employees through various court processes for years. You heard right - YEARS! 

There may be many sound reasons for using in-house staff to conduct investigations. These include: 
  • Keeping the costs down. 
  • Having someone familiar with the culture and work practices of the organisation. 
  • Knowing the individuals.   
So long as the person you use has the required skills in collecting evidence there shouldn’t be a problem, right?  

Wrong! – the issue over bias can become the dangerous undertow that makes all those cost savings irrelevant when you are embroiled in a protracted court case.  

What happened in Anders

Anders was employed by the school, located near Hobart, as an academic administrator (AA) and maths teacher.  

In 2013, Anders said that she was snowed under with her AA duties. She was also diagnosed with anxiety and depression, and took extended leave. At the end of 2013, the school removed her from the AA role. 

Anders disputed this decision by application to the Fair Work Commission (FWC). An outcome was negotiated, but Anders maintained her protests about the decision. 

Following her return to work, Anders had some further episodes of depression and anxiety, which again caused her to take leave. 

During this period, Anders’ relationship with the school’s management and other staff became problematic. It was alleged that she: 

  • Took issue at not being allocated a particular maths subject to teach, saying that “the gloves [were] off.”
  • Made some social media posts about her employment issues which caused the school to caution her about inappropriate use of the platform.
  • Sent emails to colleagues about her dispute with the school.
  • Expressed mistrust in the school’s headmaster and deputy headmaster and would not communicate with them.
  • Had such a difficult relationship with other teachers in the faculty that they had refused to work with her. 
  • Claimed that she had been discriminated against on the basis of her mental illness. 
  • Showed discourteous and disrespectful behaviour towards her colleagues. 

Deputy Headmaster Alan Jones investigated the matter. He put the allegations to Anders in writing and she was asked to attend a meeting and was invited to have representation present. Following the meeting, Jones interviewed other witnesses.  

Jones decided to terminate Anders’ employment, having found that most of the allegations against her were substantiated. He wrote to her saying that there was a total breakdown in the employment relationship, making her continued employment at the school impossible.  

Anders made a claim for unfair dismissal in the FWC. 

The FWC decision

The FWC found that while Anders’ behaviour may have indicated a lack of wisdom, it did not constitute a breakdown of the employment relationship. 

Because Jones was investigating the matter, the FWC said that he was in effect investigating an allegation against himself as Anders had allegedly declared that she did not trust the headmaster or deputy headmaster of the school. 

The concern was that he could not be impartial. This, combined with Jones’ knowledge of Anders’ mental health issues, “did not provide a reasonable basis for Mr Jones to conclude that each of these allegations [was] proven.” 

The FWC found the termination was harsh as there was no valid reason, and ordered the school to pay compensation. 

not the only case

This issue is certainly not an isolated one. The case of Keiko v Qantas also involved an allegation of bias. The investigator in that case was criticised for accepting the account of a close work colleague rather than the weight of contrary evidence from many other witnesses. As in Anders, using an independent investigator would have circumvented this issue.

Keeping investigations independent and without bias is a central tenet to procedural fairness. While independent investigators are not immune from bias or indeed allegations of bias, it is important for employers to recognise when their in-house team is too close to a situation to effectively investigate without bias. 

If you have a problem that you want to discuss or think an independent investigator is the answer, talk to one of our case managers about how our workplace investigators may be able to help. 

Do I Need to Follow Rules of Evidence?

- Wednesday, February 17, 2016
Rules of Evidence

Rules of evidence exist to ensure that court hearings are properly and fairly conducted. They are enshrined in legislation. 

To be admissible, each piece of evidence must satisfy all the checks and balances set out in the legislation. 

EVIDENCE AND THE Fair Work Commission (FWC)

The FWC is not bound by the rules of evidence or procedure in any matter it hears, although it conducts itself in a manner similar to a court, for example witness evidence is heard under oath and document disclosure processes must take place. The rules of evidence serve as a general guide to FWC members about how to determine matters. 

Because non-lawyers often appear before the FWC, and because it aims to deal with matters efficiently, it may choose to overlook some rules of evidence in favour of efficient case-flow and to ensure it remains accessible to lay parties. 

However, failing to adhere to the rules of evidence may cause you problems such as in the case of Wong v Dong Lai Sun Massage Pty Ltd.

A case in point

In the case of Wong, Wong was employed as a masseur by Dong Lai Sun Massage (DLS). Wong had applied for a temporary work visa and was awaiting the outcome of that application.

Wong claimed that her employment was terminated following absence from work due to injury. She made an adverse action claim under the Fair Work Act. Mrs Dong wanted to represent DLS and made an application to the Federal Court to do so. (Neither party had legal representation at the time of the hearing). 

The facts of the case were complex and conflicting. There were allegations of illegal payment methods, employment in contravention of visa requirements, loans from Wong to the employer, whether the employment was casual or full time, confusion over Wong’s duties and the issue of workers’ compensation. 

To add to the complexities, neither Wong nor Dong could understand English and neither had sought the assistance of an accredited translator and were seeking to represent themselves.

The judge said that neither party had identified any of the evidence as inadmissible and the court may need to take on that role.  The affidavits that had been filed by the parties did not comply with the court rules and neither party could assist the court because of their inability to speak English.  

The judge found that the parties were incapable of assisting the court to understand or resolve the matter.  He refused the application and issued a certificate for DLS to access free legal advice.

tips to gathering quality evidence
  1. If it involves complex legal principles consult a solicitor or engage a professional investigator at the outset
  2. Make sure your evidence is relevant to the dispute
  3. Gather first hand accounts wherever possible
  4. Stick to original documents or provide authentication of the accuracy of documents that are copies
  5. Although circumstantial evidence can be used, you must clearly articulate the reason that the evidence points to a particular conclusion - don't expect everyone to form the same opinion as yourself!
For more information on using circumstantial evidence in workplace investigations, download our free white paper.  

Wise Workplace provides qualified and licensed investigators and trainers to help organisations manage workplace misconduct.

Keeping it Under Wraps: Legal Professional Privilege

- Wednesday, February 10, 2016
Legal Professional Privilege in Focus

Not all communications are fair game in legal proceedings. Many are protected by a concept known as legal professional privilege (LPP). LPP allows parties to seek and consider legal advice without fear of disclosure, but there are also strict rules about when LPP exists, and when it is waived. This has been brought sharply into focus in a recent ruling by the Fair Work Commission (FWC).
What is LPP?

In litigation, the legal system requires disclosure of communications by all parties where the communications are relevant to the action. This assists the parties to prepare the matter, and the court to adjudicate. 

The exception to this rule is LPP. 

LPP protects certain communications from disclosure when they have been created to seek or provide legal advice. For example, a letter of advice from a solicitor to a client is subject to LPP because its purpose is to provide legal advice. In court proceedings, the letter does not need to be disclosed to the court or the opposing party; it remains confidential.

LPP exists so that clients can fully discuss matters with their legal advisors without fear of those matters later being disclosed to other parties.  

The case of  Kirkman v DP World Melbourne Ltd demonstrates how LPP operates, and when it can be used. 

LPP in the case of Kirkman

Kirkman was an employee of DP World Melbourne Ltd (DP). Following an allegation of bullying, DP engaged an independent investigator who provided a report. The report was marked “privileged and confidential” and DP used the report to put allegations to Kirkman. 

After Kirkman’s employment was terminated, he took action for unfair dismissal and sought disclosure of the report. The FWC refused. Kirkman appealed the decision. 

On appeal, DP argued that the report was subject to LPP because it had been created for legal advice. Kirkman argued that DP had waived LPP by putting the allegations to him. 

The FWC found that LPP applied to the report because it was created only for legal advice. It was marked “privileged and confidential” which reinforced that conclusion. The FWC noted that waiver could be express or implied and would occur where the conduct of the party was inconsistent with confidentiality requirements. 

The purpose of the partial disclosure was to provide Kirkman with the opportunity to respond to the allegations against him, which would allow DP to reach a considered conclusion. Waiver had not occurred. 

Had Kirkman been shown the report, no doubt LPP would have been waived because DP would have acted in a manner inconsistent with the confidentiality it was claiming. 

Lessons for employers

This case is a reminder of the care that must be taken when a matter is being investigated. Even before litigation is contemplated, documents can be used or created for which LPP may later be claimed. It is important to remember that:

  • LPP documents should always be marked “strictly private and confidential” or “privileged” or similar.
  • LPP documents should only be circulated to those who are required to see them. 
  • Any expert or other third party must be reminded that their expertise is being sought for the purpose of legal advice. 

LPP and waiver issues can be difficult. There is not just litigation to consider, but investigations and advice sought well before a matter becomes litigious. Using an experienced workplace investigator early on in the matter has many benefits.

Investigators are well versed in LPP and consider LPP implications from the outset of a matter. This can often be the difference in successfully or unsuccessfully litigating a matter.

The Year that Was: Lessons from 2015 Part 2

Jill McMahon - Monday, January 25, 2016
Lessons from 2015 Part 2

Here at Wise Workplace, we’ve been focused recently on reviewing the past in order to learn for the future. Last week’s blog, part 1 of our two-part series on lessons employers can take from 2015, highlighted some important case law around the themes of bullying and the definition of ‘at work’.  

In part 2, we take a look at important decisions in other areas of workplace law, including workplace culture and procedural fairness, and the implications for employers. 

Workplace culture and its impact

When it comes to workplace culture, alcohol seems to be a key feature – and an increasingly vexing issue for employers.

In the NSW District Court matter of Mitchell-Innes, a manager attended a conference still drunk from the night before. He disrupted part of the session and his employment was later terminated for gross misconduct. 

The court found that alcohol consumption was entrenched in the workplace culture, and this meant that the employee’s conduct was not serious enough to warrant termination of employment. 

Similarly, Keenan’s drunken behaviour during and after the office Christmas party led to the termination of his employment. 

Both cases found that misconduct would be harder to establish when there was a culture of drinking in the workplace, including after-hours functions. 

In Keenan, the FWC listed some steps of caution that a reasonable employer should take in trying to stop things getting out of hand, including ensuring that alcohol service is restricted, and employees are aware of employer expectations of behaviour. 

Overstepping the mark

2015 also saw cases of workers being unfairly punished for a third party overstepping the mark.

In Amiatu, employees were accused of theft. Their union representative persuaded the company to allow them to resign rather than be terminated. The employees later claimed they were coerced to resign because they feared police involvement. The FWC held that the union representative failed to act in the best interest of the workers, even though the employer had reasonably believed it had negotiated an outcome.

This is a reminder to employers to be careful about negotiating with employee representatives, especially when the employee is not present. 

In the case of BQY, systems designed to protect went too far. A female student teacher had allowed a former student to kiss her some time after she had finished her placement and after the boy had turned 18. She was subsequently refused a clearance to work with children by the Children’s Guardian, placing her teaching career in jeopardy. On review, it was found that she was not a threat to the safety of children, and she was granted the clearance. 

Procedural fairness and standard of proof

No workplace investigation is of value unless it is undertaken properly, so it is no surprise that procedural fairness featured prominently as a theme last year. 

In Amiatu, as well as the union overstepping the mark, the FWC found that the employer had not uncovered enough evidence to prove allegations of theft and had failed to objectively assess the matter. The Elton case concerned an employee’s alleged suspicious behaviour. The FWC found there was a reasonable explanation for the employee’s conduct, and the employer did not have enough evidence to support the allegations. 

Both cases are a reminder that evidence must be carefully assessed and all possible options and explanations considered. Engaging an independent investigator is often an excellent way to achieve this.

In Willis, there was some confusion about whether the employee was being performance managed or disciplined. The FWC found that employers must be clear about the process from the outset, and that any action taken against the employee must be a proportionate response to their conduct.  

The NSW Supreme Court case of Bartlett found that the employer could effectively set its own standard of proof, depending on the wording of the employment contract in question. It will be interesting to see how this decision is subsequently developed, as it seems a significant departure from the usual standard of ‘on the balance of probabilities’. 

A timely reminder

These employment law decisions of 2015 serve as a good reminder of the fundamentals for disciplinary matters or termination of employment: 

  • Investigate properly and fairly.
  • Maintain objectivity. 
  • Act within authority.
  • Foster a workplace culture that is safe and healthy for all.

Keeping these things in mind, we hope that our clients enjoy a happy and prosperous 2016!  

The Year that Was: Lessons from 2015 Part 1

Jill McMahon - Monday, January 18, 2016
Lessons to be learned from 2015

It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.   

In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.   

In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.   

When is employee conduct considered to be 'at work'?

One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.    

In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.   

In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.   

Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.   

These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:   

  • 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.  
  • Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident. 
  • Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.    
Developments in workplace bullying

For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.   

In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.  

The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.   

Employers must:   

  • Take seriously any complaints concerning the conduct. 
  • Take immediate action to stop the conduct. 
  • Have proper policies and procedures and educate all staff about appropriate conduct. 

What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases. 

Getting the Knives Out - Does the Punishment Fit the Crime?

- Monday, November 16, 2015
Employees and Charges

When an employee is charged with a criminal offence, there can be a number of complications for the employer. For example, whether the employee is a fit and proper person to work in the organisation, whether they present a risk to the safety of other employees, and whether there might be negative publicity if they continue in their employment. A recent decision of the Fair Work Commission (FWC) has laid down some basic considerations for businesses dealing with such issues. 

A case in point

In James Deeth v Milly Hill Pty Ltd, the FWC considered whether Deeth had been unfairly dismissed and whether Milly Hill had failed to properly apply the requirements of the Small Business Fair Dismissal Code

Milly Hill is a meat supplier, employing fewer than 15 people. Deeth was a final-year apprentice employed by Milly Hill. Deeth was charged as an accessory after the fact to murder. 

The person charged with the murder was under the age of 18, and so could not be named in media reports. Deeth, on the other hand, was named as an alleged offender and this caused Milly Hill concern that there would be significant publicity issues. Deeth was summarily dismissed from his employment for two reasons. 

If Deeth continued to be employed:

  • Milly Hill was concerned that other employees would resign out of fears for their own safety.
  • Customers would boycott Milly Hill’s retail business.
Application of the code

Milly Hill satisfied the definition of a small business employer, which meant that the code’s provisions would apply. The code provides that a dismissal of an employee by a small business employer is fair if the requirements of the code have been followed.

The FWC applied the code’s two-step test for appropriate summary dismissal:

  1. Whether Milly Hill believed that Deeth’s conduct was sufficiently serious to justify immediate dismissal.
  2. Whether that belief was reasonable.
The FWC findings

The FWC found that Milly Hill had a “knee-jerk” reaction to the charges, “fuelled by reports of customer and employee dissatisfaction.” The FWC accepted that Milly Hill believed that Deeth’s conduct was sufficiently serious, but its belief was not reasonable, because it had failed to properly investigate the matter. It was not necessary for Milly Hill to determine whether the crime had been committed, but rather how Deeth’s conduct impacted on the business. 

The FWC also said that an out-of-work-hours criminal charge was not alone a valid reason to dismiss – there must be a connection between the criminal activity and the employment. Because Deeth had threatened aggression leading up to the charge and because he worked with sharp knives, the FWC accepted that Milly Hill had cause for concern. The FWC found that there was a valid reason to terminate Deeth’s employment, but that the termination was harsh because the lack of investigation denied Deeth procedural fairness. 

Further, Milly Hill had not properly considered whether it might be able to keep Deeth on and “still have mitigated the perceived risks in relation to its employees and customers.”

The FWC awarded Deeth six weeks of wages as compensation. 

The lessons to be learnt

The presumption of innocence applies, even in civil situations. Employers are duty bound to provide safe workplaces and are entitled to mitigate damage to their businesses. But no matter how large or small, they also have a duty to properly investigate matters, especially when dismissal may result. Had Milly Hill reached the same conclusion after a proper investigation, it is likely that the FWC would have found in favour of the employer. This is reinforced by the case of Turton v Treblec Pty Ltd, in which a company with just four employees was found to have insufficiently investigated a matter prior to dismissing an employee. If you are considering terminating an employee or need assistance with a workplace investigation, WISE Workplace can offer expert assistance

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
Call us now on 1300 580 685 to get $400 off the advertised price!

Location: Melbourne
Date: 1-3 December


Stop Bullying Orders: How is the System Working?

- Monday, November 02, 2015
Stop Bullying Orders

In January 2014, the anti-bullying provisions of the Fair Work Act came into effect. They included provisions for Stop Bullying Orders (SBOs). In this article, we take a look at how the SBO system is working so far.

Why were the orders introduced?
Early intervention in workplace bullying is essential to prevent further harm to the victim. In other words, stop it before it becomes embedded in workplace culture. With this in mind, SBOs have been designed to give workers fast and cost-effective access to the Fair Work Commission (FWC). 
How does the system work?

If a worker and employer cannot resolve the situation themselves, the worker can apply for an SBO by lodging a Form 72 in the FWC.  Within 14 days, the FWC must send a copy of the application to the employer, who has a further seven days to respond. The FWC then decides how to deal with the matter – it may be mediation (an informal, confidential and voluntary process), or by conference or hearing, in which the FWC will consider how the legislation applies to the situation. 

The FWC can issue a broad range of orders including:

  • Stop bullying. 
  • Behaviour monitoring. 
  • Compliance with policies. 
  • Worker training and support. 

Failure to comply with the orders can lead to fines of up to $6,000. Workers may also choose to take other civil action against the employer, or make a complaint under workplace health and safety laws.

Legislative requirements

In determining whether to grant an SBO, the FWC must be satisfied that:

  • The worker has been bullied at work.
  • There is a risk that the bullying will continue. 

The bullying must be repetitive – a single incident is not sufficient. There must also be a real risk to the worker’s occupational health and safety if the situation is not resolved. The employer can rebut the application by demonstrating that it has acted in a reasonable manner in all the circumstances. 

How the law has developed
With the rise of social networking has also come cyber bullying, complicating the meaning of “at work.” The FWC recently found that if an employee had accessed social media at work, then any social media posts that may constitute bullying had also occurred “at work”. In other matters, the FWC has also held that:
  • If an employee has left the workplace, there can be no SBO as there is no risk of the bullying continuing. 
  • Any behaviour predating January 2014 (when the laws came into effect) can be relevant.
  • It is “reasonable management action” for an employer to investigate a complaint, so long as it is done in a reasonable manner.

The FWC will create orders tailored to the specific circumstances, including orders against the employer, another employee or even a site visitor. It may make individual or group orders (or both). For example, in its first formal SBO ruling, the FWC ordered that:

  • The parties not approach one another.
  • The employer implement anti-bullying policies, procedures and training. 
  • The employer clarify its arrangements for reporting bullying. 
Lessons for employers

The FWC’s considerations of SBO applications reveal a number of lessons for employers:

  • Employers are still able to manage poor performance issues, take disciplinary action and give constructive feedback so long as they can demonstrate reasonable action. 
  • Organisations should have policies and procedures for effectively dealing with bullying, which should be regularly reviewed and updated.
  • All staff should be trained in bullying behaviours and consequences (including policies and procedures) at induction and regularly as part of workplace health and safety training. 
  • Employers should strive to stamp out a bullying culture, not only for the wellbeing of employees but also to minimise lost productivity, legal fees and negative publicity.
  • As it is possible that SBOs may be later used in workers’ compensation claims or civil damages claims, it is in the employer’s best interests to minimise any damage caused by bullying. 

In all, the system seems to be working as intended, although it is hard to imagine that aggrieved employees can easily slot back into their workplaces after being through the SBO process. What is certain is that workplace bullying is a very serious issue, and the message for employers about the need to prevent and deal with it is clear. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 1-3 December