bullying

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Bullying in the workplace – how defriending a colleague on Facebook can attract sanctions
Bullying in the workplace – how defriending a colleague on Facebook can attract sanctions 1024 768 MJT Law - Brisbane Employment Lawyers

A recent application to the Fair Work Commission brought up the issue of how people can use on-line media to perpetuate a bullying regime that can attract sanctions.  The definition of what constitutes bullying includes a requirement that it occurs more than once.  For most businesses or companies this can be a very low bar.

Earlier this year a worker for a small business made a complaint to the Fair Work Commission which included an application for an order to stop bullying.  In his decision the Commissioner stated the following about the employee’s situation and the actions of her boss

“This action (the unfriending of the employee from Facebook) by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour, the likes of which I have already made findings on. The ‘school girl’ comment, even accepting of Mrs Bird’s version of events, which I am not, is evidence of an inappropriate dealing with Ms Roberts which was provocative and disobliging. I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her”

It was the unfriending of the employee on Facebook along with other actions that were aggressive and demeaning that amounted to bullying under the definition provided in the Fair Work Act.

If you are a victim of bullying or have an issue that could amount to bullying in the workplace, please contact us for assistance.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Bullying in the workplace needs to be dealt with quickly
Bullying in the workplace needs to be dealt with quickly 1024 768 MJT Law - Brisbane Employment Lawyers

Bullying in the workplace can be endemic in some environments and it has been long acknowledged the effects of workplace bullying to an employee.  Any business that does not deal with a bully effectively and quickly can be open to:

  • an application to the Fair Work Commission for an order to stop bullying;
  • an adverse action application to the Fair Work Commission;
  • possible unfair dismissal application if dismissal occurs including constructive dismissal;
  • complaints to Work Health and Safety;
  • a claim for discrimination;
  • a worker’s compensation claim;
  • a civil claim for breach of contract or negligence.

The above list shows that there are a number of different actions that an employer can take if bullying occurs.  The ramifications of bullying can mean that you are leaving your workplace open to litigation and public scrutiny there will also be legal costs and incidental costs to any claim for bullying.

There have been a number of cases before the Fair Work Commission where a worker has made an application based on the bullying behaviour of another worker.  It is clear that the Commission expects workplaces to deal with bullies in a quick and effective manner.  In the case of Keegan v Sussan the Fair Work Commission awarded an employee with $237,770 for been bullied over a period of 2 weeks which caused a psychiatric disorder.  In this case it was the employees’ failure to adequately respond to the complaint or adhere to its own policies in dealing with the complaint.

What you can learn

To avoid any possible actions against the business, make sure that all employees are properly trained and that managers and supervisors.  That everyone is taking responsibility for proactively identifying bullies or those being bullied and to act to stop or prevent any such behaviour; develop proper policies and procedures to deal with this issue; take all allegations of bullying seriously and act in the proper manner.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Perpetrators of Sexual Harassment Should Beware
Perpetrators of Sexual Harassment Should Beware 1024 768 MJT Law - Brisbane Employment Lawyers

A recent case shows the perils of sexually harassing another person.  In the case of Ewin v Vergara (No. 3) [2013] FCA 1311 Ms Ewin was an accountant employed by Living and Leisure Australia Limited (LLA) and Mr Vergara was recruited from a labour hire firm contracted to work at LLA.  Ms Ewin claimed that Mr Vergara contravened the Sex Discrimination Act 1984 (Cth) which in s.28B(6) states that it is unlawful for a contract worker to sexually harass an employee at their workplace.

Under the Act sexual harassment is defined as conduct that is a sexual advance, request for sexual favour or conduct of a sexual nature.  Ms Ewin bears the onus of proof that the conduct was unwelcome and made in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.  Importantly the person who perpetrated the conduct, anticipated or otherwise perceived would be the reaction of the person harassed is not relevant.

Under the Act workplace means a place with a workplace participant works or otherwise carried out functions in connection with being a workplace participant.

Ms Ewin claimed that Mr Vergara verbally harassed and physically harassed her triggering post-traumatic stress disorder.  In addition to the case there was a police investigation into the harassment which was also tendered in court.

The case was long and difficult which was compacted by Mr Vergara representing himself and ultimately Justice Bromberd was satisfied that Ms Ewin had been both verbally and physically harassed and awarded Ms Ewin damages for the amount of $476,163 with interest.

This decision highlights the possible ramifications that companies face from a serious sexual harassment complaint, particularly the significant financial penalties that may be awarded against a perpetrator.  It is important to remember that Mr Vergara was a contractor not an employee, a workplace extends to a place at which the participants work or otherwise carry out functions in connection with being a workplace participant.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Workplace Bullying – Anti-Bullying Protections
Workplace Bullying – Anti-Bullying Protections 1024 768 MJT Law - Brisbane Employment Lawyers

Bullying in the workplace is all too common.  It can come from any direction, usually it is a superior bullying a subordinate worker but that is not necessarily always the case. The anti-bullying laws were introduced into the Fair Work Act 2009 (Cth) (“FWA”) at the beginning of 2014 and there was that the Fair Work Commission (“FWC”) would be ‘overrun’ with applications in this area of workplace law.

However, the FWC can only make orders about the prevention of workplace bullying, this means that only where there is a risk that that the worker will continue to be bullied at work will the FWC be able to make an order.  If the employment relationship has ended, for example the employment contract has been terminated, then you will likely be excluded from these provisions.

The protections apply to individuals who meet the definition of worker in the Work Health and Safety Act 2011 (Cth) which is broadly a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.  An addition to being a worker the entity must be a person conducting a business or undertaking (“PCBU”) which is one of the following:

  1. a constitutional corporation;
  1. the Commonwealth;
  1. a Commonwealth authority;
  1. body corporate incorporated in a Territory; or
  1. the business undertaking is conducted principally in a Territory or Commonwealth place.

When can you apply for an order?

A worker will need to satisfy the criteria of being a worker from a PCBU before being eligible to make an application to the FWC.  The worker must also reasonably believe that he or she has been bullied at work.

When are you being bullied at work?

If you work for a constitutionally-covered business and you are at work while an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers behaves in a way that creates a risk to health and safety.

There are three elements if you are to be successful in making out a claim, that being:

  1. the bullying must occur while you are at work in the constitutionally-covered business;
  1. an individual or a group of individuals must repeatedly behave unreasonably towards you; and
  1. the behaviour must create a risk to health and safety.

There is a defence for employers in cases where the claimed bullying arises out of management action.   If the management action is reasonable and carried out in a reasonable manner, then you claim will likely fail.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.