30 June 2014: Workplace Relations Update for Executives on-the-go

Opera Australia parts company with  singer for homophobic Facebook post made 18 months ago

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In this edition:

  • Opera Australia parts company with singer over homophobic Facebook post made 18 months ago;
  • Bullying rampant in WorkCover NSW;
  • Stress prevention important priority for FY15; and
  • Underwhelming bonus does not amount to bullying;

 

Opera Australia parts company with  singer for homophobic Facebook post made 18 months ago

In a tale truly born of the performing arts, Opera Australia has “reached agreement” with  soprano Tamar Iveri “to immediately release her from her contract with the company” due to homophobic comments made on her Facebook page 18 months ago, reigniting the debate around social media and the workplace.

The plot

Comments were posted on Ms Iveri’s Facebook page back in May 2013. The posts were in the form of a letter to the Georgian President (Ms Iveri is from Georgia) and addressed concerns about a gay pride march that was scheduled to take place in Tbilisi, the Georgian capital. The route of the march took it through the grounds of an Orthodox Church on the same day as a commemoration for Georgian soldiers killed in Afghanistan. The post used phrases protesting the occurrence of the march along the lines of asking the President to ‘stop vigorous attempts to bring West’s ‘fecal masses’ [referring to the gay pride marchers] in the mentality of the people by means of propaganda.’

The lady doth protest
Ms Iveri has since denied that she posted the statements, alleging that her religious husband was responsible for them. However Opera Australia, under pressure from its corporate sponsors and the backlash from social media users, saw the views expressed as ‘unconscionable’ and decided to release Ms Iveri from her contract, under which she was due to perform in a production of Otello starting in July in Sydney.

The coda

Back in January we posted an article on a Fair Work Commission case relating to the dismissal of an employee who used Facebook outside of work hours. In that case, the Commission found the dismissal of an employee for making disparaging remarks on Facebook in his personal time about an organisation his employer had dealings with was justified. Deputy President Sams stated that:

‘The applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability.’

An epilogue

This episode is a further reminder, if one was needed,  of the reputational risks that employers can face from their employees’ social media activity.  Opera Australia’s Facebook page bears witness to the backlash experienced by  the Company.

As this area of liability develops, it is clear that employers should not only set out in their employment contracts the need for employees to meet reasonable work-related social media behaviour expectations, articulating those expectations in a social media policy for employees, but also  making it clear that employees can’t escape liability if they are reckless by allowing others to access their social media accounts.

 

Bullying rampant in WorkCover NSW

In an almost Kafkaesque example of ironic bureaucracy (for Gen Y reading this, think dentists who don’t take care of their teeth), a report released by a NSW Parliament Committee (Committee) (available here) has exposed an unhealthy culture of bullying at WorkCover NSW. 

According to its website, WorkCover’s purpose is to ‘increase the competitiveness of the NSW economy through productive, healthy and safe workplaces’. As part of its oversight of State health and safety laws WorkCover investigates and responds to bullying in workplaces, and its website also offers guidance  on how to respond to and prevent workplace bullying. According to the Committee, WorkCover’s mission is to be an ‘exemplar organisation’ in relation to workplace health and safety.

It is therefore with some incredulity that the Committee found that ‘WorkCover has a significant organisational problem with bullying. This problem is a longstanding one and operates at a cultural level’.

The catalyst for the inquiry was the finding in 2013 by the Industrial Relations Committee that WorkCover had unfairly dismissed one of its employees, Mr Wayne Butler. The findings included that WorkCover’s treatment of Mr Butler was ‘harsh, unreasonable and unjust and had the ‘characterisation of institutional bullying.’ The Committee believes that part of the explanation for the culture at WorkCover lies in the constant organisational change that it has undergone. This includes the numerous large scale restructures that have occurred in recent years leading to ‘significant turmoil for staff, creating an environment conducive to workplace bullying.’

The Committee has called for statewide anti-bullying laws and independent oversight of the agency which has the dual responsibility for both regulating workplace safety and providing workers compensation. A further review later in 2014 was also recommended.

What this all serves to illustrate is that a culture that recognises and prevents bullying is by no means simple and obvious to achieve.  At the very least, WorkCover’s authority and reputation have been damaged by these Committee findings.

 

 

Stress prevention important priority for FY15

As businesses approach the end of the financial year, employers should take the opportunity to consider their duty to ensure that they are protecting their worker’s psychological health. Faced with demanding client deadlines and tough internal pressures to deliver, many workers will be susceptible to unhealthy levels of stress in the lead up to 1 July. And given that untreated depression costs Australian employers around $12.3 billion every year, largely through reduced productivity, absenteeism and staff turnover, there are clear financial reasons for minimising the risk of stress in addition to legal ones. Make stress prevention in your workplace a priority for FY15.

A worker’s psychological health can be affected by work demands which can result in job stress and ultimately, psychological injury. Recent initiatives by Safe Work Australia emphasise the importance that the Government and its agencies are placing on preventing psychological injury in the workplace as well as offering employers ways to improve existing workplace health and safety policies and programs. On 26 May 2014 Safe Work Australia published a fact sheet titled Preventing Psychological Injury Under Work Health and Safety Laws. In addition to work load, the Fact Sheet identifies some other factors which contribute to stress at work including:

  • poor organisational change management;
  • poor workplace relationships;
  • lack of role clarity; and
  • lack of recognition and reward.

Since persons conducting a business or undertaking (PCBU) have a duty to ensure the health and safety of their workers by eliminating or minimising risks arising from workplace hazards like stress, the Fact Sheet is a timely guide for what to look for in your own office. It’s also important to remember that people react differently to stress at work. Some people being more susceptible to harm from this hazard than others eg new and young workers.

Has there been a restructure in your office lately? Do your employees know who to speak to if they are feeling stressed?

What can you do?

A PCBU has a duty to eliminate or at least control the risks to workers’ health and safety so far as is reasonably practicable. The Fact Sheet gives examples of effective control mechanisms which can be implemented to minimise the risk of stress and potentially, psychological harm. The recently launched ‘Heads Up‘ campaign supported by Safe Work Australia also provides employers with various tools and resources to help them create mentally healthy workplaces. ‘Heads Up’ is a joint initiative between Beyondblue and the Mentally Healthy Workplace Alliance and on its website you’ll find case studies and reports from PWC on the cost of workplace mental health conditions and also steps to help you plan a mentally healthy workplace. In summary, Heads Up encourages business to take action across three broad areas:

  • raising awareness and reducing stigma;
  • supporting staff with mental health conditions; and
  • reducing risks to mental health and promoting a positive working environment.

Safe Work Australia Chief Executive Officer, Michelle Baxter, acknowledged the benefits of having risk management processes in place to minimise the mental health risks to workers. According to Ms Baxter, ‘managing mental health risks and hazards in workplaces benefits not only workers but also the business itself’.

How can CompliSpace help?

CompliSpace’s HR and WHS policies, procedures and training & testing modules, help managers and staff to know what is expected of them and ensure they have key tools and information at their fingertips at all times. This enables a business to meet its WHS obligations while building a positive corporate culture, capturing knowledge and saving time.  CompliSpace can help employers ensure that mental health is a priority in their workplace in FY15.

 

Underwhelming bonus does not amount to bullying

In a recent decision the Fair Work Commission (Commission) rejected a worker’s application for a stop-bullying order in relation to the worker receiving a discretionary annual bonus below his expectations.

The facts

The applicant, Mr Tao Sun, commenced employment with CITIC Pacific Mining Management Pty Ltd (CITIC) as an Application Developer in April 2012. Mr Sun’s first performance appraisal was completed on 7 November 2013. Mr Sun received a rating of ‘Meets Requirements’ for his objectives in his performance appraisal. Mr Sun collapsed at work in December 2013 and was taken to hospital. Mr Sun later nominated work related reasons as contributors to his collapse.

In summary, Mr Sun accused another CITIC employee, Mr Achemedei, for changing his performance appraisal which, according to Mr Sun, led to him receiving an annual bonus less than expected – and contributed to his collapse. Mr Sun claimed that Mr Achemedei changed his rating from ‘Meets Requirements’ to ‘Meets Some Requirements.’   Mr Sun relied on an email between Mr Achemedei and another CITIC employee to substantiate his claim. The email was stored on Mr Achemedei’s personal computer which Mr Sun accessed on the same day he got his bonus news (he later could not explain how he got such access). Included in the email were words to the effect that Mr Liu’s ‘fit’ at CITIC was ‘not a good one’ and that his performance would be discussed.

An internal investigation into Mr Sun’s allegations resulted in CITIC finding that his claims were unsubstantiated. Following another meeting between Mr Sun, Mr Achemedei and another CITIC employee regarding Mr Sun’s performance, Mr Sun made another complaint against Mr Achemedei. This complaint related to Mr Sun being asked to do a task which he did not believe was in his position description.

The Commission’s findings

The Commission could not find any basis for Mr Sun’s allegations against Mr Achemedei in relation to him changing Mr Sun’s performance appraisal. The Commission found the following:

  • unless there is evidence that a discretionary bonus had been applied in a punitive manner, the awarding of a bonus is within an employer’s discretion, and does not amount to bullying;
  • being asked to do a task outside of his position description did not constitute bullying; and
  • in the Commission’s view, behaviour, such as Mr Sun’s actions in accessing a third party’s private computer as well as recording meeting conversations without permission will not be viewed favourably by the Commission. Workers cannot take the law into their own hands and act inappropriately if they believe they are being bullied.

Message for employees?

At mid-year bonus time many employees will be eagerly anticipating a bonus as part of their remuneration terms. Employers should ensure that all employees who may be eligible under a bonus scheme understand the terms of eligibility for a bonus and the process that determines how a bonus is awarded. Although Mr Sun’s attempt to blame his disappointing bonus on workplace bullying is a rather extreme reaction to his own dissatisfaction, it nonetheless shows how important it is for employers to manage their employees’ expectations properly and to be as transparent as possible to avoid similar situations occurring.

 

Contact Details

This blog is a guide to keep readers updated with the latest information. It is not intended as legal advice or as advice that should be relied on by readers. The information contained in this blog may have been updated since its posting, or it may not apply in all circumstances. If you require specific or legal advice, please contact us on 1300 132 90 and we will be happy to assist.

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