fair work commission

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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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What happens at conciliation stays at conciliation
What happens at conciliation stays at conciliation 1024 768 MJT Law - Brisbane Employment Lawyers

Once an unfair dismissal application is filed, the Fair Work Commission will then notify the parties (usually the applicant employee and respondent employer) that conciliation is to be conducted.   Generally, a conciliation is conducted over the phone and it is the way the Commission provides an informal method of resolving the unfair dismissal claim.  Conciliation is usually done privately so the discussions don’t go public.

There is no obligation to reach a settlement if you do not want to.  It is the rights of the parties to maintain the position stated in the Application and have the matter proceed to a hearing.  Settlement can be a good way to resolve the matter avoiding further stress and delays.

Any party that is unrepresented is offered a 3-day cooling off period following the conciliation so that they can make a decision whether to opt out of the agreed settlement.

Preparing for conciliation

It is important that you prepare for conciliation, it is important to make sure that the Commission has the right phone number to call and you know the day and time of conciliation.  Consider the following to prepare:

  1. make sure you are available on the day;
  1. set aside a place to have a private conversation as conciliation will take about 45-90 minutes;
  1. make sure you are able to be reached on the telephone you give;
  1. bring all the paperwork you need to participate in the conciliation including your application, any letter of termination and employment contract;
  1. have a good idea as to what you will accept at conciliation in terms of a settlement;
  1. bring a pen and paper to make your own notes during conciliation.

What happens if conciliation is successful

If an agreement is met at conciliation, then the conciliator will prepare an agreement for all parties to sign.  This agreement is usually a deed of settlement and release.  If signed the matter comes to an end and whatever is agreed during conciliation will be in the deed and will make up the entire settlement.

Once it is fully executed the conciliator should provide both parties of a copy of the signed agreement.

What happens if conciliation is not successful

If the parties cannot agree, then the conciliator will consider conciliation to have failed.  Once this occurs the matter will be sent to a formal conference or hearing.  There is still time for the employee to discontinue the application but if this doesn’t happen then a hearing date may be set.

How we can help

There are a number of ways we can help you get the best result from your unfair dismissal application from attending the conciliation with you to running the hearing.  If you want you can get some tips from me.

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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Fair Work Commission and extensions of time – are you out of time?
Fair Work Commission and extensions of time – are you out of time? 1024 768 MJT Law - Brisbane Employment Lawyers

The Fair Work Commission (“FWC”) has a 21 calendar day time limit, on any unfair dismissal application this means that if you are thinking about filing an application with the FWC you must start that application from the date of dismissal.  This also applies to any General Protection application involving dismissal.  If you do not file your application within this time you will have to apply to the Commission for an extension of time.  An extension of time is only given if the Commission is satisfied that there are exceptional circumstances taking into account the following:

  1. reason for the delay;
  2. whether the person became aware of the dismissal after it had taken effect;
  3. any action taken by the person to dispute the dismissal;
  4. prejudice to the employer;
  5. merits of the application; and
  6. fairness as between the person and other persons in the same position.

This is a very high hurdle to get over and the following recent case give some indication on how difficult it is.

Gordon Forrest v Conga Foods Pty Ltd [2015] FWC 700

Background

Gordon claims that he was summarily dismissed on 28 October 2014 whereas Conga Foods asserts that Gordon resigned voluntarily on 31 July 2014 to take effect from 31 October 2014.  There is a dispute as to whether dismissal has occurred however Gordon did not file an application with the FWC for unfair dismissal until 10 December 2014 which is 22 days outside the 21-day time limit.

A conference was held on the matter of being out of time and the parties agreed that the FWC would conduct a hearing for an extension of time.  As predicted Gordon was asking for the extension of time and Conga Foods was against it being awarded.

Facts

Gordon asserts that he was terminated by Conga Foods on 28 October 2014 verbally and that the application was late because Conga Foods “threatened him with arrest and Conga Foods eventually laid charges of theft against me and which threat of and charges I needed to consider carefully given the potential consequences of having a criminal record and what that might mean for my future”.  Gordon also referred to a phone call he had from a police officer advising him that Conga Foods would withdraw its complaint of theft on the condition that he did not speak to the FWC.  Gordon also noted that he is ill suffering from anxiety and stress and was on medication, and that he also made a complaint to Conga Foods HR on 18 May 2014.

Conga Foods provided documentary evidence that Gordon had resigned and also provided a separation certificate which suggested resignation.  Conga Foods also stated that Gordon failed to articulate which workplace right that Conga Foods had contravened and as a result the application for an extension of time must fail.  Conga Foods also provided, among other things, an email dated 5 November 204 from Gorgon which stated “I am now currently preparing a FWA submission which requires a few details from my laptop, I will return it as soon as I have finished…”.

Consideration

The Commissioner considered the dispute between Gordon and Conga Foods for the return of Conga Foods property and concluded that the steps that Conga Foods took to get the equipment back did not give rise to an exceptional circumstance.  The Commissioner also considered was the fact that Gordon was on medication and concluded that the condition did not prevent Gordon from making an application within the time limit and in addition took a holiday for the later part of November 2014 knowing fully that a time limit to start an application exists.

In his submission Gordon stated that he was absolutely staggered to have the Qld police arrive at his house on 4 December 2014 after he returned from a holiday and sent Conga Foods an email which stated, among other things, that he will be proceeding with a late application against Conga Foods to the FWA.  The Commissioner concluded that the threat of police in this circumstance didn’t give rise to an exceptional circumstance.

Conclusion

The Commissioner was not satisfied that there are exceptional circumstances allowing an extension of time and dismissed the case.

What to learn from this case

The Commissioner painstakingly went through all the issues and considered each separately and dismissed each one stating that each matter was either irrelevant in considering the criteria for an extension of time or it was not an exceptional circumstance.

It is clear by this case that the FWC will not award an extension of time without something exceptional far beyond what was considered here.

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.