Fair Work Commission makes one order from 151 applications in first 3 months of anti-bullying jurisdiction

In March 2014 we wrote about the addition of an anti-bullying jurisdiction to the Fair Work Commission.   To recap, from 1 January 2014, ‘workers’ (a broad term which includes subcontractors and volunteers) can apply to the Commission for a stop bullying order.  Applications are dealt with by a Commissioner either by mediation, conference or hearing. 

The Commission reports on each of its jurisdictions on a quarterly basis.  On 23 April 2014, it published its first report on the anti-bullying jurisdiction, covering 1 January to 31 March 2014.

In the Commission’s first three months, it received 151 applications.  This is far below the 3,500 applications for the year predicted by the Commission’s General Manager, Bernadette O'Neill in June 2013.

Most applications were made against large employers with over 100 staff in the clerical, retail, banking and health services industries. 

Although the definition of bullying excludes reasonable management action, the vast majority of applications allege bullying by managers.

Interestingly, 20 applications alleged bullying by a group of workers.

All but eight of the 151 applications were withdrawn in the early case management or conciliation stages.

Of the eight applications that proceeded, six were rejected by the Commission for being frivolous, not having reasonable prospects of success, or because they were not made in accordance with the Act (in one example, the application form was not properly signed).

Of the remaining applications one led to the Commission’s first and only stop bullying order, made on 21 March 2014 by Senior Deputy President Drake in Applicant v Respondent [2014] PR548852.  

Details of the case are sparse - Senior Deputy President Drake’s order does not include any reasons, save that the orders were agreed by the parties during conference.  However, the order is quite specific in its wording.  The alleged perpetrator cannot have any contact with the applicant alone or comment about the applicant’s clothes or appearance.  Interestingly, the applicant was ordered not to attend work before 8.15 am.

As knowledge of the jurisdiction increases and more applications are filed, we will get a better idea of how the anti-bullying jurisdiction will work and whether bullied workers will resort to its remedies.  Given that managers are being accused of bullying most often, the main point for employers to take away from the Commission’s first three months is to ensure that managers are properly trained on all aspects of their role - starting with performance management and discipline. 

Emma Pollett-Sutton
Lawyer

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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More on social medial and out of hours activity

Recently I wrote about social media and how what employees do with them after hours can affect employment.

The decision in Pearson v Linfox Australia Pty Ltd [2014]FWC 446 confirms that where an employer’s reputation or the security of its enterprise are at stake, this is certainly true.

Having learnt its lesson from the experience with Mr Stutsel, see [2011] FWA 944 and [2012] FWAFB 7097, Linfox implemented a social media policy and gave its employees training in it.

Mr Pearson was dismissed for his failure over time to comply with a number of Linfox policies and for refusing to sign an acknowledgement that he had read and understood the newly implemented social media policy.

In his evidence at hearing, Mr Pearson said that he had refused to sign the social media policy because it was intended to apply out of hours and “Linfox do not pay me or control my life outside of my working hours, they cannot tell me what to do or say outside of work, that is basic human rights (sic) on freedom of speech.”

In addressing the social media policy acknowledgement issue as a valid reason for Mr Pearson’s dismissal, Commissioner Gregory said that there is little point in having a policy that prevents employees from damaging their employer’s reputation and releasing their confidential information at work that leaves them free to do so out of hours.  He accepted that there were many instances where employers cannot lawfully restrict or regulate employee’s activities outside work but said that for a social media policy to operate effectively it had to reach beyond work hours.

So despite what Mr Pearson may have thought, his freedom of speech and action outside work hours was not absolute.

Commissioner Gregory observed that Linfox was not actually asking Mr Pearson to abide by the social media policy but only to acknowledge that he had read and understood it.  All the same, Linfox would expect its employees to abide by the policy and for them to recognise that breach of the policy can have consequences for ongoing employment.

Mr Pearson does not appear to have understood this. 

In any event, as Mr Pearson had breached other workplace policies relating to notification of absences, unauthorised mobile phone usage and safety procedures, it is likely he would still have been dismissed even if he had not taken a principled, but misguided, stance on his employer’s social media policy.

So employees are on notice that out of hours social media use that damages an employer’s reputation or discloses its confidential information can lead to a dismissal being upheld as valid.

Greg Doran
Director

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

 

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Out of hours activity and the link to employment

So if work hours are 9.00  am to 5.00 pm does this mean that what people do between 5.00 and 9.00 is off limits to the scrutiny and sanction of employers?

The issue is coming into focus with the explosion of electronic communications.

The internet and social media allow people to have a very public soap box for their views and activities and for employers to be part of the audience, even if they weren’t specifically invited.

Further, the internet may have meant that pornography no longer has to be purchased publicly but the risk of exposure to enjoying it has moved to a new dimension.

As with every innovation it’s all good fun until someone gets hurt.

Take Ms Fitzgerald, a hairdresser who complained on Facebook about the amount of her Christmas bonus.  Sacked after her employer read the post, she had to endure a conciliation and a one day hearing to be told that her dismissal was unfair and be awarded $2,300.00 compensation: Fitzgerald v Dianna Smith T/as Escape Hair Design [2010] FWA 7358.

Or take Mr Griffiths, a 25 year career public servant.  He had viewed pornography on a work laptop after hours at home, using his own internet service provider on eight occasions over three weeks.  He was detected when the laptop was audited and his browsing history analysed.  Mr Griffiths did himself no favours by first maintaining the access was accidental and then that it was “research”: Griffiths v Rose [2011] FCA 30.  His dismissal was upheld.

Or take Mr Stutsel, a 22 year veteran with Linfox.  Armed with a Facebook page that his wife and daughter had established for him he posted abuse against two of his managers, which resulted in his sacking when Linfox representatives discovered it.

Mr Stutsel was luckier than Mr Griffiths but had to work harder than Ms Fitzgerald to find out that his dismissal was unfair and be reinstated.

Linfox appealed to both the Full Bench of Fair Work Australia and then to the Full Court of the Federal Court in vain.

It is difficult to read the FWA decisions: [2011] FWA 844 and [2012] FWAFB 7097, and not be left with the impression that the real evil in the case was not what Mr Stutsel said but that Linfox did not have a formal policy on social media.

The one thing Ms Fitzgerald, Mr Griffiths and Mr Stutsel all have in common is that they did not intend their employers to find out about what they were doing.  Had any of what they did occurred in office hours, there is little question that all sackings would have been upheld.

So as great and convenient as the internet is, people use it at the peril of their employment even out of hours.

 

Greg Doran
Director

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

 

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