Bullied before 1 January 2014? The Fair Work Commission has jurisdiction to make a stop bullying order, but your employer will need to be a corporation

 

In previous articles we have spoken about the anti-bullying jurisdiction that was conferred on the Fair Work Commission with effect from 1 January 2014, and who can take advantage of it.

On 6 March 2014 the Full Bench of the Commission decided that behaviour that occurred before 1 January 2014 can be used as the basis to apply for a stop bullying order: Application by Kathleen McInnes [2014] FWCFB 1440.

Ms McInnes filed an application for a stop bullying order that relied upon behaviour that had occurred between November 2007 and May 2013.

Commissioner Hampton referred the application to the Full Bench for a ruling given the issue that it raised.  The Commonwealth Government and peak bodies were invited to make submissions on how legislation granting rights from 1 January 2014 could rely on events that occurred before that date.

Interestingly, the Commonwealth Government did not respond to the invitation but the Australian Industry Group and the ACTU both did.

Unsurprisingly their submissions reflected their likely positions on the anti-bullying legislation: namely the employers wanting to limit its effect and the unions wanting to give it as broad an application as possible.

The question that the Full Bench had to decide was whether the anti-bullying legislation was truly retrospective in its effect.

It is a legal principle that legislation should not operate in reverse to alter or affect the rights and liabilities of people unless this is made plain.

But a distinction needs to be made between legislation that affects past rights and liabilities and legislation that grants future or present rights based on past acts.  The Full Bench found that the anti-bullying legislation falls within the latter category and is therefore not retrospective in its operation.

The Full Bench remitted the application to Commissioner Hampton to deal with a further jurisdictional objection based on the employer not being a constitutional corporation.  Ms McInnes’ employer was incorporated under the Associations Incorporation Act 1981 (Victoria) and is a charity registered with the Australian Charity and Not for Profit Commission.  It provides programs for people living with mental illness and is funded through the Victorian and Commonwealth Governments.

On 24 March 2014 Commissioner Hampton decided that based on its overall activities the employer was not a trading corporation within the definition of constitutional corporation and therefore dismissed the application: Application by Kathleen McInnes [2014] FWC 1395.

So two matters concerning the anti-bullying legislation have been confirmed:

1.            A pattern of behaviour starting or occurring before 1 January 2014 can be relied upon;

2.            Outside the Commonwealth Government sector the employer must be a corporation.

PS: On 21 March 2014 the Fair Work Commission made its first formal orders under the anti-bullying legislation: Applicant v Respondent [2014] PR548852.  There are no published reasons for decision on which the orders were based but reading them, the Commission intended that two employees have as little to do with each other as possible.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

 

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Workplace bullying: the new jurisdiction

Since 1 January 2014 workers who believe they have been bullied may apply to the Fair Work Commission for an order to stop the bullying.  A worker includes an employee, a contractor or sub-contractor an outworker, an apprentice or trainee, a student gaining work experience or a volunteer.

 

The definition of bullying is wide and includes either an individual or a group of individuals who have been subjected to repeated, unreasonable behaviour that creates a risk to health and safety.

 

The bullying needs to have occurred more than once but includes victimising, intimidating, humiliating or threatening.

 

Bullying excludes reasonable management action carried out in a reasonable manner.  The bullying has to occur at work but it is arguable that provided there is a connection with work bullying via social media including Facebook and LinkedIn and bullying at work related functions would be included.

 

Employers not included in the new bullying jurisdiction of the Commission include partnerships, sole traders, State Government Departments and unincorporated associations.

 

The Commission can make orders to stop the bullying, which can be directed at both the employer or the individuals involved.

 

The range of orders that could be made include:

 

·        Monitoring of behaviours by an employer;

·        Compliance with an employer’s anti-bullying policy;

·        The provision of information and additional support;

·        A review of the employer’s workplace bullying policy.

 

The Commission cannot order compensation but if its orders are not complied with it can order substantial penalties of up to $51,000.00 for a body corporate and up to $10,200.00 for an individual. 

  

Employers should ensure that they:

 

·        Understand the scope of the Commission’s new bullying powers;

·        Understand the definition of bullying;

·        Understand the difference between bullying and reasonable management action;

·        Have a clear policy stating that bullying is unacceptable, and conduct training which promotes this policy.

·        Conduct regular health checks to manage the risk of bullying.

 

In the first month of operation of the anti-bullying laws the Commission received 44 applications to stop bullying and commenced to deal with them well within the 14 day limit that the laws set.

 

The Commission will publish a report on the stop bullying applications it receives on its website in early April.  At that time we will have a better idea of how bullied people subject to the anti-bullying laws are making use of their rights.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.
 

 

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Social media: use at your own risk

 Following from my previous article on social media and how their use can affect ongoing employment I want to bring to your attention the recent case of Wilkinson-Reed v Launtoy Pty Ltd [2014] FWC 644. 

Ms Wilkinson-Reed was the HR manager at the Launceston Toyota, a position she had held for 18 years at the time of her dismissal. 

She was friends with the wife of the current dealer principal. 

The dealer principal and his wife had separated.

The dealer principal issued a directive to Ms Wilkinson-Reed and other employees not to discuss various matters concerning the business with his wife as she (the wife) was not a company director.

Ms Wilkinson-Reed was dismissed for serious misconduct, part of which was said to arise from a Facebook conversation between her and the dealer principal's estranged wife in which Ms Wilkinson-Reed said:

1.         The dealer principal had taken a dislike to another employee;

2.         Staff could not wait to be able to say exactly what they thought about the dealer principal in a Toyota sponsored anonymous survey;

3.         Another person had told her that the dealer principal was 'called tosser' in the motor vehicle world in Launceston.

The dealer principal accessed his wife's Facebook page through the use of her password without her knowledge or consent and saw the exchange between Ms Wilkinson-Reed and his wife.

Commissioner Deegan found that Ms Wilkinson-Reed had breached her duty of confidentiality by stating that the dealer principal had taken a dislike to an employee but it was not so serious as to justify dismissal.

Commissioner Deegan accepted that the comments about the dealer principal were in a private conversation.

The issue in this case was not so much about the medium by which Ms Wilkinson-Reed expressed her low opinion of the dealer principal but whether the expression of such an opinion by a long standing employee with an otherwise impeccable record was 'having a deleterious effect on the workplace, its employees or the business of the employer'.

Commissioner Deegan decided that it did not so as to warrant dismissal.

Taking into account that Ms Wilkinson-Reed had held only 2 employment positions in 36 years and was 3 years from retirement, he awarded her the maximum 26 weeks compensation available under the Fair Work Act.

In my view this case demonstrates yet again how the use of social media can affect ongoing employment.  Users cannot guarantee privacy of communication even if they intend them to be private.

Although the dealer principal breached his wife's privacy by reading the Facebook conversation with Ms Wilkinson-Reed this fact was little consolation to Ms Wilkinson-Reed who found herself without a job towards the end of her working life.

The lesson is clear: only say things on social media that you are happy for anybody to read.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Fair Work Commission upholds termination based on medium to high levels of cannabis use

A Woolworths subsidiary, Woolstar, regularly conducts on-site drug and alcohol testing of its employees. 

It terminated the employment of a storeperson based solely on his testing positive for medium to high levels of cannabis.  Woolstar. 

The Fair Work Commission (FWC) held in its decision of 18 February 2014 that this factor alone represented "serious misconduct" that would justify dismissal. 

Notably, however, the Commissioner stated in his decision that "a lower concentration [of cannabis] . . . might attract some lesser disciplinary penalty and a remedial treatment program." 

The Commissioner also rejected the employee's argument that on-site drug testing is unlawful because there is no accredited testing regime in Australia, stating that "this proposition would translate into a circumstance that would render all workplace drug testing currently being conducted in Australia as void or invalid."

What are the ‘takeaways’ from this decision for employers?

1.         It is permissible for employers to conduct on-site drug and alcohol testing

2.         The employee's having medium to high levels of cannabis can constitute serious misconduct justifying summary dismissal

3.          Lower levels of cannabis may not constitute serious misconduct

4.          If you conduct on-site drug testing of your employees, it is important to have a clear policy in this regard, including the types of discipline that may imposed if employees test positive for various types of drugs.

Full decision of McCarthy v Woolstar


Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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