Elaine Jesurasingham, Partner George Tsogas, Solicitor 24 July 2014 Miller Harris in Business.

Workplace Law – The Round Up

Elaine Jesurasingham, PartnerGeorge Tsogas, Solicitor

24 July 2014

Miller Harris in Business

Insights into anti-bullying laws

Elaine Jesurasingham, Partner24 July 2014


Quarterly report card The number of anti-bullying applications to the FWC has been

underwhelming

The FWC predicted 70 claims per week

For the first quarter of 2014, 150 applications were made

Of 150, eight cases were the subject of formal determination by the FWC

The FWC has adopted a conservative approach to determining if conduct is in fact bullying at work


Overview of Fair Work Act Anti-Bullying Provisions

The legislation:

provides a single definition of workplace bullying

allows a worker to apply to the FWC for an order to stop bullying

the worker must be bullied at work in a constitutionally-covered business

allows the FWC to make any order it considers appropriate to stop the bullying, other than the reinstatement of a person or the payment of compensation or monetary amount


Overview of Fair Work Act Anti-bullying Provisions

If a stop-bullying order is made and contravened, then:

the person affected by the contravention

an inspector or

industrial association

may apply to the Federal Circuit Court or Federal Court for the imposition of a monetary penalty, not exceeding 60 penalty units ($10,200.00)


What is bullying?The Fair Work Amendment Act 2013 introduced a single definition of workplace bullying

Definition

A worker is bullied at work if:

while the worker is at work

an individual or group of individuals

repeatedly behaves unreasonably toward the worker or a group of workers

the behaviour creates a risk to health and safety

(section 789FD(1) of the Fair Work Act)


Anti-bullying orders under the Fair Work Act 2009

What is excluded from the definition of workplace bullying? Single incidents of rudeness, differences of opinion or personality

clashes

Upset or concern about management practices or belief that an employer undervalues an employee

Reasonable management action undertaken in a reasonable way

The following must be satisfied:

the behaviour must be management action

it must be reasonable for the management action to have been taken

the management action must have been carried out in a manner that is reasonable



Elemental parts bullied at work

the expression: at work is not defined

it is not necessary for the bullying to have occurred while the worker was actively engaged in work or at the workplace

the expression may extend to:

movement about or to and from a workplace

a host employer’s place of work

a work-related trip conducted outside working hours



Elemental parts (continued) working from home

a work party

during a lunch break

the expression is broad and may include incidents arising out of or in the course of employment



Elemental parts (continued) repeatedly unreasonable behaviour

there needs to be more than one occurrence of unreasonable behaviour

there is no specific number of incidents required (although more than one)

it is unnecessary for the same type of unreasonable behaviour to be repeated

there could be a range of behaviours over time



Elemental parts (continued) unreasonable behaviour

a reasonable person having regard to all of the relevant circumstances must see the behaviour as unreasonable

Lord McMillan in Glasgow Corporation v Muir:

“Some persons are by nature unduly timorous and imagine every path beset by lions; others of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free from both over-apprehension and from over-confidence.”

the behaviour includes victimising, humiliating or intimidating behaviour, practical jokes, initiation ceremonies, unreasonable work expectations



Elemental parts (continued) risk to health and safety

there must be a causal link between the behaviour and the risk to health and safety

it is unnecessary that the behaviour is the only cause of the risk

the behaviour must be a substantial cause of the risk

a risk to health and safety is not confined to actual danger

the risk element is satisfied by the possibility of danger to health and safety provided it is real and not simply conceptual

Case: Shaw v ANZ Bank [2014] FWC – 26 May 2014


Who can make an application?A worker, who includes:

an employee

a contractor

an outworker

an apprentice

a trainee

a work experience student

a volunteer


Who cannot make an applicationA person who is not a worker

unpaid work, including:

caring for a disabled relative and receiving a social security payment, is not work done for Centrelink

students performing work for teachers

domestic work performed for family members


Against whom can an application be made?

Individuals whose behaviour has led to the application

The employer of those individuals

Visitors to a workplace, including: contractors

Visitors

regular members of the public

union representatives



Concepts: Reasonable management action

management actions include omissions (section 12 of the Fair Work Act)

management actions have a wide meaning and include:

actions to effectively direct and control the way work is done

performance management process

providing fair and constructive feedback on a worker’s performance

investigating a complaint

taking disciplinary action



What is reasonable?

Reasonableness of management action:

requires an objective assessment of the circumstances known at the time

considerations may include:

the circumstances that led to and created the need for the management action

the consequences that flowed from the management action

the specific circumstances and attributes of the employee which may include his or her culture, emotional state and psychological health



The test is whether management action was reasonable, not whether it could have been better

Management actions do not need to be perfect or ideal

An overall course of action may still be reasonable, even if particular steps are unreasonable

To be considered reasonable, the action must also be lawful and not irrational, absurd or ridiculous



Unreasonableness must arise from the actual management action rather than the applicant’s perception of it

Cases: Ms SB [2014] FWC – 12 May 2014

Tao Sun [2014] FWC – 16 June 2014


What does the FWC do when an anti-bullying application is made?

The FWC must start dealing with the application within 14 days after lodgement

The FWC may take steps to inform itself about the complaint by contacting the employer or parties named in the application

A copy of the application will be given by the FWC to the employer and each person named in the application

The FWC may conduct a conference

The FWC may conduct a conciliation

The FWC may conduct an open hearing


What does the FWC do when an anti-bullying application is made?

The FWC may refer a complaint to the state work health and safety regulator, but this does not mean that the FWC will defer dealing with the application while the referral occurs

The FWC may make a confidentiality order


What orders can be made? The FWC’s powers are limited to preventing the worker from

being bullied at work

The focus is on resolving the complaint and enabling normal working relationships to resume

The range of orders the FWC can make include orders requiring:

individuals or a group to stop the specified behaviour

regular monitoring of behaviours by the employer

investigation by the employer

compliance with the employer’s anti-bullying policies

the provision of information and additional support and training to workers


What orders can be made? relocation of the perpetrator or the bullied worker

ground rules or protocols to control future encounters and interactions

Case: Applicant v Respondent [2014] FWC – 21 March 2014

The FWC ordered an employee accused of bullying to:

have no contact with the applicant alone

make no comment about the applicant’s clothes or appearance

refrain from sending emails or texts to the applicant, except in emergency situations

complete any physical exercise at the employer’s premises before 8 am

raise no work-related issues with the applicant without first notifying the employer’s chief operating officer or his subordinate

The applicant was ordered to not attend work before 8.15 am


What cannot be ordered? Reinstatement

Payment of compensation or monetary amounts

The payout of a fixed-term employment contract


What does the FWC consider? The evidence of the witnesses (a strict approach has been adopted in

the published cases) – privilege against self incrimination applies

Outcomes arising from an external or internal investigation into a complaint

The result of a state regulatory body’s investigation

Any grievance or complaint procedures activated by the worker and the outcomes of those procedures

Compliance with employer’s bullying and complaint processes

Any other matters the FWC considers relevant – not bound by the rules of evidence


A word about costs and appeals Parties who incur legal costs in an anti-bullying application

generally will pay their own costs

The Commission may order one party to pay another party’s legal costs if it is satisfied that:

the application or response to an application was made vexatiously or without reasonable cause

it should have been reasonably apparent that the application or response had no reasonable prospect of success


A word about costs and appeals The application for costs must be made within 14 days after the

FWC finishes dealing with a dispute

A determination by the FWC may be appealed within 21 days of the date of the decision

The appeal is made to the full bench of the FWC and lies for an error of law or error of fact


Tips for managers Adopt the four-step risk management model in the How to Manage

Work Health and Safety Risks – Code of Practice 2011


Risk assessment model – control measures

The Work Health and Safety Act 2011 requires: the elimination of factors that may cause bullying or

if it is not reasonably practicable to do so, the risk of bullying should be minimised to the extent reasonably practicable

Once the psychosocial risk of workplace bullying is identified, control measures should be selected

Control measures may include:

a code of conduct

an anti-bullying policy

procedures to respond to bullying complaints


Risk assessment model – control measures

train managers and supervisors to respond to workplace bullying

mentor new and poorly-performing managers and workers

offer an employee assistance programs

promote and reward positive leadership styles and teamwork

have effective systems for providing formal and informal constructive feedback, managing workloads and performance management


Implementing control measures Rollout and publicise code of conduct, policies and procedures

Train workers in the code of conduct, policies and procedures


Training matters A written record of training sessions, including topics covered, name of

trainer, duration and names of attendees should be kept

Training should be provided when:

a new employee joins the organisation

there is a new legislative or other change relevant to bullying

a bullying policy or procedure is significantly changed

there has been a bullying incident in the workplace

refresher training on at least an annual basis (training can be delivered in toolbox talks, staff meetings, emails, newsletters, attachments to payslips etc)

We have a complaint – guiding principles

The following guiding principles are important in the face of a bullying complaint:

act promptly

treat all matters seriously

do not victimise

do not prejudge

support all parties


We have a complaint – guiding principles

ensure procedural fairness (natural justice)

communicate processes and outcomes

maintain confidentiality

keep records of each step taken in the management cycle


A word about natural justiceNatural justice requires:

the person complained about is told the substance of all allegations against the person

the person complained about has an opportunity to respond to the allegations

A word about natural justice all parties to the complaint have a right to be heard

the person making a decision about the complaint acts impartially and honestly

the final decision is based on findings of fact that are supported by relevant evidence and sound reasoning – irrelevant matters must not be taken into account

standard of proof: balance of probabilities


Managing sick or injured employees -

a complex webElaine Jesurasingham, Partner

24 July 2014


Managing sick or injured workers

a complex web Failure to manage ill or injured workers can result in a smorgasbord of

actions against employers, including claims of:

disability discrimination

unfair dismissal

unlawful dismissal (owing to temporary absence from work on account of illness or injury)

adverse action

work health and safety obligations (to determine fitness for work)

breach of common law duty of care

invasion of privacy


A natural starting point Ask the employee about the nature of his or her illness or injury

Request that the employee undergo medical examination

Directing that an employee attend medical examination will be a lawful and reasonable direction in the context of functional capacity, where:

frequent, lengthy or unexplained absences occur

further information about a known illness or injury is needed

there is a lack of information or inconsistencies in information about the employee’s health


A natural starting point genuine concern by the employer and an employee’s fitness to

safely work

where medical certificates are non-specific or suspected to be false or fraudulently obtained

where a medical certificate is produced during the course of a disciplinary procedure as a reason for inability to participate in that procedure

It helps to have an employment contract term or policy dealing with independent medical examination


Conduct of a medical examination

A suitable medical expert should be identified and fully briefed with a list of the inherent requirements of the job, pre-injury duties and specific questions to determine prognosis, diagnosis and functional capacity

Consider obtaining the consent of the employee to speak and/or obtain records from the employee’s treating doctor


Conduct of a medical examination

Conduct of the medical examination (continued)

Seek the employee’s consent to the independent medical examination prior to directing that the examination occur

Take appropriate steps to ensure the confidentiality of sensitive personal information to be briefed to the independent examiner with the consent of the employee

The employee should be advised of the reasons for the medical examination

Provide a copy of the medical opinion to the employee (unless the doctor recommends against)


Medical opinion to hand – What next?

Carefully consider the medical evidence, for instance:

Has the doctor answered all the questions?

Do the answers make sense?

Is clarification necessary?

Medical opinion may provide for accommodations or adjustments

Are the accommodations or adjustments reasonable or achievable or do they impose unjustifiable hardship on the employer?


Medical opinion to hand – What next?

The question is: if reasonable accommodations or adjustments are made, will the employee be able to safely perform the inherent requirements of the role, and if so, when?

If not, dismissal may be justified


Termination – beware! Workers’ compensation legislation may compel an employer to find

suitable alternative duties during a period of rehabilitation or return-to-work – beware of the modified duties becoming a new position with the employee

The Workers’ Compensation and Rehabilitation Act 2003 makes it unlawful to terminate an employee because of a work-related incapacity for a period of one year from the date of the incapacity

Where the incapacity for work is non-work related, a protection period of three months (either consecutively or in a series of absences) in a 12-month period applies


Termination – beware! Dismissal of an ill or injured employee may be considered if:

the employee is not within a statutory protection period in respect of the incapacity

even with reasonable adjustments or accommodations, the employee cannot perform the inherent requirements of their pre-illness position


Termination – beware! the employee is unlikely to perform the inherent requirements

of the pre-illness position in the foreseeable future or is the employee improving?

there is no obligation to provide alternative duties or a return-to-work under workers’ compensation legislation

There should be up-to-date medical evidence to inform these questions


Termination – beware! If dismissal is an option, the correct processes of allowing an

opportunity for the employee to show cause should be given and includes:

advising the employee in advance of the show cause process

advising the employee to have a representative or support person

considering the impact on the employee and the employee’s length of service

listening to submissions made by the employee before making a final decision

providing written reasons for termination of employment


Social media and the workplace

George Tsogas24 July 2014


http://www.theprivacyanddatasecurityblog.com/files/2011/10/Social-Media-Seal.jpg

Social media policies in the workplace

What are social media policies?What risks does social media pose for

employers?How do social media policies assist

employers?What should be included in a social media

policy?


What are social media policies?

Social media policies set out rules concerning the use by employees of social media platforms to ensure that such use does not negatively affect the employer, other employees or other parties associated with the employer.


Risks to employersThe risks to employers of social media use

include:reduced employee performanceworkplace harassment and bullyingbreaches of rights to confidential informationdisputes about ownership of intellectual

propertybreach of copyrightliability for legal actions such as defamation and

misleading and deceptive conduct


How can social media policies assist?

Discourage and reduce misuse of social mediaReduce legal risk to employersProvide basis for disciplinary action against

employees for misuse


What must a social media policy include?

A clear definition of “social media”Specific details of what behaviour is and is not

acceptableConsequences of breaching the policyReference to other workplace policies and

procedures that apply to social mediaReminder of the risks of posting on social

media


That’s not all folks…Employees should be:made aware of the policyinducted and trained in the policycompetent in the policyregularly trained in the policy


Elaine Jesurasingham, Partner George Tsogas, Solicitor 24 July 2014 Miller Harris in Business.

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