21 September: Workplace Relations Update for Executives On-the-Go

Cyberbullying ‘at work’ and what it means for employers

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In this edition:

  • Cyberbullying and the workplace: do you have policies and training in place?;
  • Employee’s child sexual offences justified school’s termination of employment
  • Court of Appeal overturns $2.2 million Workers’ Compensation payout.

Cyberbullying ‘at work’ and what it means for employers

Recent research produced by Edith Cowan University in Western Australia emphasises the importance of employers taking a ‘zero-tolerance’ approach to cyberbullying in the workplace and introducing training to help employees identify and manage cyberbullying if it occurs.

The question is, when does cyberbullying occur ‘at work’?

We previously wrote a blog on a recent decision by the Fair Work Commission (FWC) which has shed some light on how to answer this difficult question. In addition to the University’s research, that FWC decision provides some important guidance for employers on the steps to take to help address the issue of cyberbullying in the workplace.

What is ‘cyberbullying’?

The researchers from the University defined ‘cyberbullying’ as repeated acts of intentional aggression perpetuated by an individual or group against a victim using digital technologies and communication tools such as email, mobile phones, instant text messaging and social networking sites. Cyberbullying is a particularly insidious form of bullying because it can happen anonymously, at any hour, anywhere and reach a vast audience.

The choice of anonymity afforded to cyberbullies means that there is disconnectedness from the repercussions of their actions. Because cyberbullying can cause a harmful message to reach a large number of viewers instantly for maximum damage, the research reports that cyberbullying is now a recognised contributor to work-related stress.

At work, employers may have social media policies in place to inform employees about what sort of social media use is sanctioned during work hours using personal or work technology. They may also have anti-bullying policies and procedures in place to inform employees about what behaviours are appropriate at work.

But do existing policies recognise that cyberbullying that occurs outside work hours can still, in certain cases, be considered workplace bullying and subject to the anti-bullying provisions under the the Fair Work Act 2009 (the Act)?

The FWC and bullying ‘at work’

In a recent decision, the FWC confirmed a narrow definition of what constitutes bulling ‘at work’ in relation to claims under the Act. The case involved three employees who applied to the FWC for an order to stop bullying alleging that they were the subject of repeated unreasonable behaviour by other staff. One issue for determination was whether offensive and insulting Facebook posts made about the employees constituted bullying ‘at work’.

Importantly for future cases of cyberbullying in the workplace, the FWC found that bullying ‘at work’ includes:

  • bullying that occurs outside of the confines of the physical workplace; and
  • extends to meal times and work breaks, as well as when the worker is participating in activities authorised or permitted by the employer (i.e. accessing social media while performing work).

The Full Bench of the FWC held that: ‘The relevant behaviour is not limited to the point in time when the comments are first posted on Facebook. The behaviour continues for as long as the comments remain on Facebook…It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’.’

This decision is important for employers and employees because it demonstrates that cyberbullying is just as serious as physical or emotional bullying face-to-face in the workplace.

Most importantly, employees should understand that even if the bullying conduct doesn’t occur within the physical workplace it can still be classified as ‘workplace bullying’. Also, employees should note the FWC’s comment about the permanency of comments on Facebook and understand that as long as the bullying material is available for others to view, the victim can still suffer harm.

How the University’s research findings can help employers

The University research concluded that, after surveying white collar employees between the ages of 18 and 57, organisations should have a zero tolerance policy and offer training in resilience and etiquette to reduce the impact of cyberbullying on employees. The survey was conducted to investigate the mediating role of optimism in the relationship between cyberbullying and job related outcomes.

The University’s researchers recommend that all organisations implement a zero tolerance policy in their workplace that:

  • establishes the organisation’s position on cyberbullying;
  • defines cyberbullying;
  • outlines the consequences for cyberbullying in the workplace; and
  • details the penalties for perpetrators i.e. disciplinary actions.

The study also revealed that it is equally important for employers to train employees to become optimistic and resilient in the face of these kinds of attacks, as it is to deter workplace bullying.

The study dictates that ‘it is highly beneficial for organisations and employers to set up training programs that can detect and manage stress by increasing the awareness and an individual’s ability to cope with stressful situations’. The researchers also explained that this approach will improve the adaptability of employees to stressful environments whilst at the same time reducing the severity of symptoms before they lead to a psychological injury.

What to do next?

Employers should:

  • ensure that their organisation has anti-bullying policies that clearly identify how social media use after work hours can still have legal or disciplinary consequences;
  • implement employee training in how to identify, report and cope with workplace bullying, both in the real life office and through technology; and
  • have visible signage so workers are aware of their obligations under the organisation’s policies, and comprehend the consequences of a breach of that policy.

Implementing a system of policies, training and consequences for cyberbullying, as well promoting an optimistic workplace can help to reduce work-related stress in employees which can only benefit an organisation.


Employee’s child sexual offences justified school’s termination of employment

The Royal Commission into Institutional Responses into Child Sexual Abuse and its inquiries into various child abuse allegations are the subject of current media attention.  Many schools have been the subject of the Royal Commission’s inquiries into how they responded to historical sexual abuse claims by students, including how they handled employment matters relating to employees at the school who may have committed the sexual abuse.

The Royal Commission’s ongoing work highlights a difficult area for employers who provide child services and engage employees for child related work.  A recent decision by the FWC has provided some clarity for employers who find themselves in the difficult position of navigating employment law issues when an employee has been involved in alleged child sexual offences.

The FWC found that an employer who terminated the employment agreement of an employee who was charged with criminal offences which prevented him from receiving working with children check clearance did so legally and that the employee had no grounds for an unfair dismissal claim.

The offences and legal changes

Mr M was employed by the Catholic Education Office (CEO) and worked as a teacher and religious education coordinator in high schools in NSW. In 2012 he was arrested and charged with the indecent and sexual assault of an underage girl. Mr M pleaded not guilty to the charges and was released on bail.

As a result of these charges, the CEO suspended him from work with pay until the determination of the criminal trial. On 15 June 2013, the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act) commenced. Under the new Child Protection Act Mr M could not obtain a working with children check clearance as he would be categorised as a ‘disqualified person’ and therefore could not engage in the work for which he was employed.

At the point that Mr M became a ‘disqualified person’ for the purposes of the Child Protection Act it effectively became illegal for the CEO to employ him in child-related work.

The CEO’s reaction

In November 2013, despite the criminal proceedings having not been concluded, the CEO requested that Mr M change his employment status from ‘suspended with pay’ to ‘voluntary leave without pay.’ Mr M refused to take leave without pay claiming that he would not be able to fund his defence in the criminal proceedings.

In December 2013, the CEO terminated Mr M’s employment.

Mr M filed an application for an unfair dismissal remedy with the FWC and in response the CEO lodged a counterclaim against him.  The CEO’s counterclaim submitted that:

  • Mr M’s termination had not be at the CEO’s initiative (in accordance with section 386 of the Fair Work Act); and
  • instead, Mr M’s employment agreement came to an end as it had been frustrated by his inability to obtain a working with children check clearance.

A contract can be frustrated if performance of the contract becomes impossible for reasons outside the parties’ control, and it results in the contract ending automatically.

The CEO asserted that there was no ‘dismissal’ as defined by the Fair Work Act and therefore Mr M had no jurisdiction to make an unfair dismissal claim under the Fair Work Act.

The FWC’s initial decision

At first instance the Commission found in favour of Mr M.  The Commission held that Mr M’s contract of employment could have continued after the commencement of the Child Protection Act, despite his ‘disqualified person’ status, provided that he didn’t engage in child-related work that involved direct contact with children. According to the FWC, the factual circumstances of the case meant that the CEO terminated his employment on its own initiative, justifying the unfair dismissal application.

On appeal to the Full Bench

The CEO appealed the decision and on appeal, placed less emphasis on the frustration argument. The CEO argued that rather than frustration causing the contract to be terminated, the continuation of the employment was not permissible as it would have amounted to illegality.

On appeal, the FWC agreed with the CEO.  In a short judgment (seven paragraphs in total!) it found that:

  • Mr M’s continued employment would have been illegal due to the operation of the Child Protection Act and accordingly, the contract was not terminated on the initiative of the CEO; and
  • the continuation of Mr M’s employment was inconsistent with the new legislation meaning that the CEO had not ‘dismissed’ him (irrespective of whether it was fair or not).

What does this mean for employers?

This decision means that employees who are subject to criminal proceedings under child protection laws may see their employment legally terminated where those laws make it illegal for their employment to continue. Although the FWC decision in this case was made in relation to NSW child protection laws, the decision might operate as a precedent for FWC decisions where other State or Territory child protection laws apply.

The case also provides a precedent for organisations who choose to terminate an employee’s contract on the basis that they are ineligible to be employed under legislation, or that continuing their employment would be illegal or inconsistent with legislation. Organisations should however keep in mind that the FWC did suggest at first instance that the termination did constitute unfair dismissal as the employee could have been reassigned to work that was not child-related.


Court of Appeal overturns $2.2 million Workers’ Compensation payout

The NSW Court of Appeal has overturned a decision of the NSW Supreme Court to award $2.2 million in damages to a security guard who was injured at work. The employee was awarded the sum after he slipped at work and injured his lower back and his employers were found liable.

There was no dispute as to whether the employee fell at work and significantly injured his lower back, or that he was owed a duty of care by both the occupier of the work site Patrick Stevedores (PS) and his employer FBIS.

However PS and FBIS, who shared payment of the sum, both submitted that they not acted negligently and were not at fault.

The facts

The worker had been patrolling the PS site at night in March 2005 and returned to the demountable guardhouse where the security guards were stationed. It had been raining and the area around the gatehouse was wet. When the worker stepped up into the gatehouse he slipped and fell, injuring his lower back.

The worker commenced proceedings four years later alleging that he was entitled to damages for a breach of the duty of care owed to him by both FBIS and PS. He contended that the step from the ground up into the guardhouse was too high and that there should’ve been measures to prevent the step from becoming wet during inclement weather.

Importantly, since the accident, PS had installed an intermediate step and an awning at the entrance to the guardhouse to prevent the same accident occurring again.

According to the injured employee, the changes made by PS were reasonable precautions that should’ve been taken before his accident and would’ve prevented his fall, thus justifying his negligence claim.

The Court’s original decision

The Supreme Court was satisfied that PS and FBIS were negligent in failing to inspect the work site and guardhouse to determine its suitability as a place of work. Justice Campbell attributed the risk to which the employee was exposed (the risk of slipping while entering the guardhouse in wet weather) to the ‘awkward’ height of the entrance step and the slippery nature of the doorway when wet.

The appeal decision

The Court of Appeal concluded that the worker had failed to establish negligence on the part of PS and FBIS. This was decided by examining the trial judge’s ruling on:

  • the ‘reasonable’ precautions that should’ve been taken;
  • the height of the step that caused the fall; and
  • the application of the Civil Liability Act 2002 (NSW) (Act).

‘Reasonable’ precautions

The Court of Appeal took issue with Justice Campbell’s finding that an intermediate step and an awning were reasonable precautions to take with respect to the risk of stepping up into the guardhouse during wet weather.

A reasonable person in the position of PS or FBIS would not have identified that the height of the step a risk factor and would not have thought to put in an intermediate step to mitigate the risk.

The Court made the point that stepping from any surface to another can be dangerous but most able-bodied people do so every day as they climb stairs, board buses and enter homes or other buildings without injury. Leeming JA said that ‘the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent’, and that stairs are inherently dangerous.

The Court held that ‘the evidence did not establish that a reasonable person in the position of either appellant would have identified the height of the step as a risk factor which required the construction of an intermediate step.’

Uncertainty of the height of the step

Due to the passage of time between the accident and the court proceedings and there were evidentiary issues when assessing the suitability of the height of the step.

However importantly, the Court held that even though PS installed an intermediate step in the time since the accident, this action did not provide evidence that this was a reasonable precaution that should’ve been taken previously.

What does this case mean for workplace safety?

The message here is two-fold: accident-free work environments are a fallacy and appeals can be worth it.

Employers can take some comfort from the Court’s finding on the basis that that when an employee injures themselves at work, it does not automatically result in a breach of duty of care.

It is impossible to have a risk-free and incident-free work site as accidents will inevitably happen. This case reminds employers that they need to be aware of their obligations under the relevant legislation to remove foreseeable, not insignificant risks by taking reasonable precautions.

The Court confirmed that employers should not be afraid of making improvements to the work site because acting to prevent or mitigate risk proves that a risk was present. Fixing risky areas where accidents have occurred is not, according to the Court, proof of fault for those accidents.

This case also demonstrates that an appeal process can be worthwhile for employers who believe that they have not breached their duty of care. Going to court can be daunting and extremely expensive, however where employers have evidence of a WHS program, and documents showing WHS audits, risk assessments, inspections and staff training, it may be a viable option for those who believe they were not at fault.

Compliance with Current and Future Child Protection Laws – Embedding a Child Protection Culture. How can this be achieved?

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