Swearing in the workplace

A recent decision of Horner v Kailis Bros Pty Ltd [2016] FWC 145 concerns a dismissal of an employee for swearing.

In this case the employer got it right and was able to successfully oppose an application for compensation and/or reinstatement for unfair dismissal by the foul mouthed employee.

The employee had been disciplined previously for swearing. The Commission found there was a valid reason for his dismissal because the employee did more than swear but also abused his supervisor.

The employer wisely asked the employee for his version of events as to what happened when the verbal altercation with his supervisor took place. He was told that his job could be under threat. Therefore the Commission was satisfied that the employee had an opportunity to respond and put his version of the events, and that he was aware of the reason why his job could be under threat.

The case is a good example of an employee’s conduct that justified dismissal.

Employers need to make sure they deal with conduct issues properly and employees are afforded procedural fairness, that is given the opportunity to put their version of events.

In dealing with conduct issues we recommend that all employers obtain advice from Human Resource Management specialists or a lawyer who is an Accredited Specialist in Workplace Relations before dismissing a worker for conduct issues.

Nevett Ford Lawyers provide advice on all aspects of Employment Law.

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Workplace issues and the 7-Eleven scandal

In light of the recent 7-Eleven scandal surrounding the exploitation and underpayment of its workers, the Chairman and Chief Executive Office of 7-Eleven have announced their resignations.

The lesson to be learned by all employers, regardless of the size, scope or structure of their business, is that there are significant financial and non-financial consequences for employers who breach their obligations to employees.

Regardless of their visa or residency status, employees in Australia are entitled to basic rights, such as payment of minimum wages. The minimum wage and working conditions for an employee will depend on their age, position, experience and the area of work in which they practice.

The minimum wage for employees can be found in an applicable modern award, enterprise bargaining agreement or employment contract.

An investigation into the 651 separate 7-Eleven franchises across Australia has found that franchisees were paying their workers, many of whom were on temporary working visas, half the minimum wage.

When an employer breaches their obligations under the relevant instrument, be it an award, agreement or employment contract, its past and present employees have several avenues available to them in order to recover lost wages, including;

• Lodging a dispute application to the Fair Work Commission;
• Filing a Workplace Dispute application with the Fair Work Ombudsman; and
• Taking legal action in either a State or Federal court with jurisdiction.

Such processes are often highly stressful, lengthy and expensive for employers to defend and employers risk significant penalties for breaching their obligations.

It is not only international workers that are vulnerable to exploitation, with the Fair Work Ombudsman receiving almost 600,000 enquiries per year, more than 150,000 of which are complaints regarding underpayments.

If you have received a complaint from an employee in relation to an underpayment, act quickly and repay any monies owed before the matter is escalated to the next level.

Nevett Ford lawyers are specialised in all areas of workplace relations and can advise you on your obligations in relation to payment of entitlements, as well as defending any underpayment complaints and actions.

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Workplace Bullying - Can a business be responsible for bullying outside of work hours?

The Fair Work Commission recently heard a case in which three employees sought an order to stop bullying at their workplace. Their employer, DP World Maritime Limited, sought to strike out their application on the basis that the bullying behaviour took place when the employees were not ‘at work’.

Numerous employees had engaged in telephone calls and Facebook messages concerning their colleagues’ union memberships and made derogatory comments to and about them. These exchanges took place both during and outside of office hours in several locations both in and outside of the workplace.

The Commission had to consider the definition of the expression ‘while the worker is at work’ and what it encompassed. The Commission concluded that the concept of being ‘at work’ includes instances in which the employee is performing work and also when they are engaged in any other activity permitted by their employer, such as taking a meal break. The meaning is not confined to the workplace and includes any location or time of day when they are performing work. 

In this case, the Full Bench held that the behaviour took place while the employees were ‘at work’ leaving their employer at risk of liability for their actions.

If allegations of bullying have been made in your business, contact Nevett Ford Melbourne on (03) 9614 7111 and ask to speak to one of our workplace relations team about protecting yourself from legal action.

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Is it just me…or am I being bullied in the workplace?

Is someone at work making you feel harassed, humiliated or intimidated? You might not be able to explain the experience, but you may be the victim of workplace bullying.

It is often difficult to determine when it began, and it can be even more difficult to explain exactly how it happens, but workplace bullying has a real impact on its victims.   

Victims of workplace bullying are often uncomfortable reporting such behavior because they feel they can’t explain the nature of their complaint properly or lack the requisite proof.

Victims are also unwilling to make a complaint for fear of the ramifications, whether this involves being labeled a whistleblower or losing their job.

If you are a national systems employee, you have a legal right to make a workplace bullying complaint – so make it!

If you are being bullied in the workplace and would like to know your rights in relation to protecting yourself from bullying behavior, call Nevett Ford Melbourne lawyers for an initial consultation on (03) 9614 7111.

If you are an employer you need to have appropriate systems and policies in place to prevent bullying. SafeWork Australia and the Fair Work Ombudsman offer guidelines on how to prevent and respond workplace bullying.

Nevett Ford Melbourne lawyers acts for both employees and employers and can see matters from both points of view.

Stand up for your rights and speak out against workplace bullying.

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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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Being bullied at work? The Fair Work Commission is here to help (but read the fine print)

From 1 January 2014 bullied workers may be able to apply to the Fair Work Commission for an order for the bullying to stop. 

Changes to the Fair Work Act 2009 enacted by the previous Labor government and kept in place by the current coalition government (in a rare example of bipartisan support on an issue) are designed to cover not only employees but contractors, subcontractors, volunteers and even work experience students.

Everyone within those categories in Victoria, the ACT and the NT is covered by the changes.  In the other States, it's a bit of a patchwork. If bullied workers either work for or at a business that is a sole trader or partnership rather than a company, they may miss out.

This less than ideal situation reflects the federal nature of government in Australia and the limits on the Commonwealth's legislative powers imposed by the Constitution.  Victoria is able to take advantage of the fact that it referred its power to make laws on workplace relations matters to the Commonwealth over 20 years ago.

Still something is better than nothing and the changes offer workers the opportunity to deal with issues that are often addressed clumsily and ineffectively through workplace health and safety laws or workers compensation laws.

Click here to view my summary of what is about to become Part 6-4B of the Fair Work Act 2009.

Of course if a workplace has the right practices and policies in place bullying should never happen or if it does it should be dealt with before it becomes a major issue. But we don't live in a perfect world, do we?  Time will tell if the changes will make a difference and help stamp out what some experts see as an endemic problem in Australian workplaces.

Greg Doran
Director

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

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