23 January 2015: Workplace Relations Update for Executives On-the-Go

The anti-bullying jurisdiction is here to stay

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In this edition, three lessons:

  • the anti-bullying jurisdiction of the FWC is here to stay, and sometimes it even works;
  • employers should take care to state explicitly the consequences of breaching their policies; and
  • a former employee gets a $50,000 damages order for breaching his employer’s IP rights.

The anti-bullying jurisdiction is here to stay

In what appears to be the first successful application of the Fair Work Commission’s (FWC) power to make ‘stop-bullying’ orders, the FWC has revoked an order on the basis that it has been successful. The decision by the FWC to lift the previous ‘stop-bullying’ orders, which followed a request by the applicant, demonstrates that the new anti-bullying scheme is working.

Although the facts of the original application to the FWC are confidential and unavailable, the different orders made in this case have been published and their contents present an intriguing story.

What is known about this case is as follows (names are pseudonyms). An application was brought by F against C in March 2014. They both worked at D. Following a conference between the parties, the FWC made orders that:

  • C shall complete any exercise at the premises of D before 8:00am.
  • C shall have no contact with F alone.
  • C shall make no comment about F’s clothes or appearance.
  • C shall not send any emails or texts to F except in emergency circumstances.
  • C shall not raise any work issues without notifying the CEO of D, or her subordinate, beforehand.
  • F shall not arrive to work at D before 8:15am.

Bizarrely, following another conference between the parties in September 2014, it was further ordered that:

  • C shall not exercise on the balcony in front of, or in the vicinity of, F’s desk between 8:15am and 4:15pm.
  • C shall not speak to the applicant in circumstances where there are no other individuals within listening-range.
  • C shall not send any emails to F unless the substance of the correspondence is work-related and a supervisor is also an addressee.
  • C shall not raise any issues relating to the applicant’s work capabilities or job performance without notifying a supervisor beforehand.

In December 2014, F wrote to the FWC stating that:

‘Since our last meeting there has been a negligible amount of conflict between C and myself, and I have felt comfortable approaching my supervisor, with any concerns that I have. The past year of intervention from Fair Work has been very positive and helpful and I am very grateful for the support that has been given to me by Senior Deputy President Drake.
I think that the New Year is an appropriate time to lift the orders and that it is in the best interest of everyone involved to do so.’

The anti-bullying jurisdiction

According to the FWC’s annual report, only one anti-bullying order was issued in 2013-2014 (the first year of the anti-bullying jurisdiction), being the one described in this article. 20 other applications in the anti-bullying jurisdiction were dismissed.

Although these numbers might lead some to question the effectiveness of the anti-bullying jurisdiction, the number of successful orders may indicate the opposite. Anti-bullying applications involve a period of assessment, mediation and conferencing. Matters are case-managed with a view to a resolution, not necessarily a decision or order.

If an order is made, a Commission Member can make any order he or she considers appropriate to prevent the worker being bullied. In dealing with anti-bullying matters, the FWC cannot issue fines or penalties and cannot award financial compensation.

In the case above, it’s clear that the two orders given by Senior Deputy President Drake were aimed at requiring the individual – C – to stop the specified behaviour.

Those orders appeared to be effective, as demonstrated by F’s decision to have the orders lifted.

The ultimate value of the anti-bullying jurisdiction may turn out to be its process, rather than it’s result. In any case, it appears that this world-first innovation is here to stay.

Employers should take care to explicitly state the consequences of breaching their policies

In another case, two employees have been reinstated to their positions, despite having breached the company’s mobile phone policy. The company in question is a (very) large miner, and the mobile phone policy was in place to ensure that large plant and machinery were operated safely. The full decision is available here.

The case

The large miner – we’ll call them Big Hefty & Prosperous Pty Ltd – determined that the use of mobile electronic devices posed a safety risk on mine sites and their use by mine workers and visitors is prohibited. It had a written procedure to this effect. A worker ‘A’, breached this procedure when he turned on his phone and posted a Facebook status whilst waiting for his truck to be loaded. A fellow employee was a Facebook friend of A and she reported the post during that shift to management. An investigation ensued and he was found to be in breach of the procedures. He was given an opportunity to respond, which was considered, but he was ultimately dismissed.

He applied to the FWC for reinstatement. He relied on section 385 of the Fair Work Act 2009 (Cth), which states: ‘a person has been unfairly dismissed if the FWC is satisfied that the dismissal was harsh, unjust or unreasonable’. As part of his argument, A submitted that his personal circumstances  (his partner also worked at the mine, and that a relocation would have a very adverse effect on him), and financial situation (he was indebted and needed to service loans) were relevant, and that he had used the phone while the truck was stationary and that there was no risk associated with his actions. A also argued that the mobile phone policy was not clear that a breach of it would result in dismissal. Furthermore, he contended that the breach of the policy was trivial, and did not warrant dismissal.

The FWC found in his favour, despite agreeing that he breached the policy. The FWC found that: ‘In the current circumstances, the consequences of a breach of the new procedure was not clear, and the evidence demonstrated the introduction of the procedure and training documentation was also not adequate. In essence, this meant that although the policy was clearly breached, the consequences of breaching the policy were not clearly spelled out. Such a breach could not therefore be the basis of a termination. 

The lesson

At a general level, the lesson from this case is that policies, and the consequences of breaching them, should be communicated clearly to all staff. It is questionable whether a large company could have foreseen that this would be its undoing, but the present case is a testament to the way in which unfair dismissal laws take into account a wide range of factors. 

Although safety is undoubtedly an important responsibility of employers, in this particular case, it was found that summary dismissal was not appropriate for the breach of this policy, especially since it was not ‘clear or decisive’ to employees how a breach of it would be dealt with.

Employers should review their policies in light of this decision and in particular whether key policies set out clearly the potential consequences in the event of  a breach whether it be:

  • disciplinary action;
  • formal investigation; or
  • summary dismissal.

A lesson in copyright: recovering property from departing employees

What can you do when an employee steals your valuable intellectual property (IP)? You can sue them. The case of Leica Geosystems Pty Ltd v Koudstaal (No 3) [2014] FCA 1129 shows that remedies are available for employers to claw back their IP from rogue employees.

The facts (with some licence)

L worked for a company, DSL. He left to join another company, Y Pty Ltd (Y). In the month preceding his departure, he copied a large volume of data onto an external hard drive, which he then removed from DSL’s premises. Unsurprisingly, DSL sued. It claimed (in brief):

  • an injunction, preventing L from using the material;
  • an order requiring L and Y to return the materials; and
  • damages and compensation pursuant to the Copyright Act 1968 (Cth).

It was established at trial that a tranche of 190,000 files, and then another tranche of 190,000 files were taken. These were copied onto an external hard drive that was owned by L. L said of this that ‘copying the files was very stupid, very naïve and it was a very thoughtless act’.

When asked why he took these materials, L said: ‘at the time, I felt a deep sense of ownership of that code. It was – it was code that I had worked on’. The judge also concluded that he thought that this material would be useful as a ‘reference’ for his future work. 

The result of the trial was a declaration that L had taken the materials, which were confidential, and the IP of DSL. Orders were made giving effect to this, and also requiring L to return all materials. 

Damages were also claimed. With regard to damages to be awarded as compensation, the Court found that because very little loss was suffered by DSL, only nominal damages could flow. It awarded $1. However, under the specific provisions of the Copyright Act 1968 (Cth) which allows additional damages for ‘flagrant’ breaches of copyright, the Court found that a significant award was justified. It awarded $50,000. 

This case is a reminder of:

  • the importance of clear and explicit contractual provisions, which reiterate the fact that IP created in the course of employment belongs to the employer;
  • the clear legal duty for employees to keep confidential information confidential;
  • obligations owed to employers survive the termination of employment; and
  • the serious consequences, for employees and employers, that can flow from breaches of copyright.

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

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