6 October: Workplace Relations Update for Executives On-the-Go

Tackling the 2015 Rugby World Cup in the workplace

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In this edition:

  • Tackling the 2015 Rugby World Cup in the workplace;
  • The Fair Work Commission urges workers to make bullying claims through alternative channels; and
  • Compensation for unfair dismissal reduced by one third due to ‘significant and repeated misconduct’.

Tackling the 2015 Rugby World Cup in the workplace

The Rugby World Cup is upon us again, and with it the endless speculation, celebration and commiseration that every major sporting tournament inevitably brings. Events of this scale almost inevitably intrude into the workplace, whether in the form of debate between colleagues, fatigue in the office the morning following a 1:30AM Wallabies match, or personal leave for the truly dedicated fans. As always, workplace managers should be mindful of the opportunities presented and risks posed by an event such as this.

Respectful patriotism 

Firstly, although the performance and quality of the various teams is a hot topic globally, these discussions must be kept respectful in the workplace. This is especially true given that the teams represent nations, and comments can be seen as insensitive or offensive to office members of different nationalities. Negative comments about a team’s performance are inevitable in such a large tournament, but comments that are unnecessarily harsh or directed towards a country as a whole are inappropriate. Managers should clearly outline what behaviour is acceptable and what will not be tolerated in the workplace, and ensure that this is communicated to staff. Passionate rugby fans should be allowed to express their opinions on the tournament, but discriminatory and hurtful comments must be avoided.

Rules around touchline fatigue 

Managers should not require their workers to lie to them about reasons for leave or lateness to work, and instead should be prepared to have an open discussion with their employees about their expectations. Rugby World Cups are a cause for huge excitement amongst fans, and many will inevitably skip sleep to watch the most important matches live. Managers should acknowledge this, rather than ignore it, as this will best allow them to adjust to the risks present in the workplace.

The United Kingdom is the host of the World Cup (and England is nursing its pride following a Wallabies defeat!) meaning that several matches will take place in the middle of the night in Australia. As the competition heats up, more fans are likely to stay up to watch the games live. This can lead to fatigue in the workplace, which harms productivity and can create potential safety hazards. Managers must communicate their expectations of workers and may consider allowing:

  • workers to start later;
  • changes to the work roster; or
  • workers to take personal leave.

There must be a balance between the recognition of the excitement caused by the World Cup and reminders of the standards of behaviour required in the workforce.

Companies should have a drug and alcohol policy in place, and if workers violate this policy, there should be clear consequences. These policies should deal with a range of circumstances so that differing levels of contravention are responded to in an appropriate manner.

Next matches

Managers should be aware of the time and dates of the following matches:

  • Quarter-Final 4: 1AM Monday 18 October
  • Semi-Final 2: 1AM Monday 26 October


Fair Work Commission urges workers to make bullying claims through alternative channels

A recent decision by the Fair Work Commission (FWC) reminds workers that there are other avenues for seeking a remedy (besides the Commission) for workplace bullying where their claims may not meet the statutory threshold for a ‘stop-bullying’ order to be made.

The FWC recently heard an application for an order to stop bullying under section 789FC of the Fair Work Act 2009 (Cth) (Act) in which the applicant alleged bullying behaviour by a co-worker, Mr A.

In making its determination to reject the claim the FWC reiterated that where workers allege bullying, but fail to establish a pattern of ‘repeated, unreasonable behaviour’ as is required by the Act, the FWC does not have the power to make an order to stop the bullying.

The alleged bullying

Mr S alleged a single incident of unreasonable behaviour in which Mr A physically and verbally assaulted him. There was a verbal altercation between the two workers on New Years’ Eve 2014 after which their employer took steps to ensure that the two were not rostered to work together again.

Mr S claimed that Mr A had attempted to give him instructions without authority and had done so in a very rude manner. He also claimed that Mr A has pushed him and made certain threats to his health and safety. Mr S acknowledged that although this was not repeated unreasonable behaviour it was still bullying behaviour.

Commissioner Peter Hampton dismissed Mr S’s application commenting that there was little doubt that the conduct was objectively unreasonable and capable of creating a risk to health and safety. However, there was no evidence in Mr S’s allegations that there was any other incident or form of unreasonable conduct by Mr A capable of constituting repeated unreasonable behaviour.

To refresh our readers, the FWC may find that bullying at work has occurred where:

  • a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; and
  • the behaviour creates a risk to health and safety.

In this case, Mr A could not satisfy the first limb of the test and accordingly, could not establish that Mr S had bullied him at work, as recognised under the Fair Work Act.

Narrowing the availability of orders from the FWC

This case clearly illustrates one of the limits of the FWC’s capacity to stop bullying under section 789FC of the Act. We have previously written about another decision in which the FWC narrowed the definition of what constitutes bullying ‘at work’ in relation to these claims under the Act.

The FWC urge employees to understand the ‘particular parameters’ of the anti-bullying provisions of the Act and, instead of relying solely on these provisions, to look to the General Protections afforded to employees under Part 3-1 of the Act when searching for remedy or redress to alleged ‘workplace bullying’. These General Protections protect employees’ workplace rights and provide protection from workplace discrimination, were the discrimination is based on specified grounds.

Employers should ensure that they have clear and effective procedures in place to address employee grievances whether they relate to bullying or other issues, to avoid escalation to external agencies.

Compensation for unfair dismissal reduced by one third due to ‘significant and repeated misconduct’

A former employee of the Asia Pacific International College Pty Ltd (APIC) has been successful in their unfair dismissal claim, but has had their compensation reduced based on their own misconduct.

Commissioner Roe of the Fair Work Commission (FWC) found that the employee’s conduct was unacceptable and breached APIC’s Code of Conduct, but because the employer’s termination email did not provide the employee with sufficient details or opportunities to respond, the unfair dismissal claim succeeded.

This is the latest in a series of FWC cases which has seen compensation made available under a legitimate unfair dismissal claims giving weight to both:

  • the employer’s failure to provide procedural fairness to the dismissed employee; and
  • the employee’s actual misconduct.

The facts

The employee began their employment as a full time course coordinator at APIC in March 2014 and was dismissed by email on 5 October 2014. The FWC was presented with extensive email correspondence during this period which demonstrated the mutual dissatisfaction in the employment relationship. The employee sent multiple emails which demonstrated a lack of courtesy and respect to colleagues and students at the College.

The emails included multiple ones directed toward the IT department after the employee had been informed that there were limitations on the IT system and efforts were being made to improve services. The tone of these emails was insulting and accusatory. One email sent to both an IT worker and a range of colleagues referred to the systems as ‘crap’ and asked ‘could somebody do the job properly?’. These emails led to complaints about the employee’s ‘abusive attitude’ from other staff. The employee described these complaints as ‘childish charges’. His communication style led to a warning in September.

In addition, informal complaints were made by students about the conduct of the employee. Emails were sent to students which were described as sarcastic, accusatory and threatening. Other data and observations were used beyond the text of the emails to support these concerns. The employee was also accused of making comments with racial connotations. This accusation was rejected by the employee, and the Principal of APIC agreed to undertake an independent investigation. The investigation did not take place due to the Principal’s busy schedule and the belief that the employee had moved on.

The decision

Commissioner Roe first established that although there was valid reason for the dismissal based on the misconduct of the employee, APIC had breached the Fair Work Act 2009 by failing to notify the employee of the reasons for his termination and not providing an opportunity to respond.

The employee was entitled to 6 weeks’ pay as compensation, based on the estimated time he would have remained at the company. This award was then reduced by one third based on his misconduct.

Employee’s bad behaviour doesn’t justify breaches of the Fair Work Act 

The Fair Work Act 2009 outlines clear factors that will be taken into consideration when determining whether a dismissal is harsh. Section 387 states that the employer must give reasons for the termination. This did not occur in this case. Although the employee had been made aware of concerns and had been warned about his conduct, he was not told that his employment was at risk and was not given an opportunity to respond to the concerns.

APIC argued that the communications with the employee demonstrated that he would respond in an aggressive and defensive manner if issues about his conduct were raised. They therefore stated that providing the employee with an opportunity to respond would not have made any difference. Commissioner Coe did not accept this argument, stating that is was sufficient to prove that there was a real possibility that the employee would have made a constructive response if it had been made clear that his employment was at risk.

Employee misconduct

Although the dismissal was unfair, Commissioner Coe stated that there was ‘no excuse for the abusive and highly critical communications’ which were copied to external lecturers and other staff members. Although employees have a right to raise legitimate issues in the workplace, the employee’s communication style failed to show basic courtesy and respect which is essential to an employment relationship. His communications were not only disrespectful and inappropriate, they also breached APIC’s Code of Conduct. This suggested that the reasons for the dismissal were fair, even though the process used to effect the termination was not.

Procedural issue

An additional matter which supported the finding that the termination was harsh or disproportionate was the failure of APIC to conduct a formal investigation into allegations of racial discrimination after the Principal undertook to do so. The FWC held that the Principal should have consulted with the employee before making the decision not to proceed with the investigation.

Employee misconduct: a mitigating factor in unfair dismissal claims 

The principles derived from the FWC’s decision have been reinforced by another recent case where the compensation for unfair dismissal was limited to six week’s pay due to employee misconduct. In that case, which involved a librarian working in the town of Walkerville, the employee criticised management in text messages and on Facebook prior to his dismissal. Similar to the APIC situation, the unfair nature of the librarian’s dismissal was based on the procedural unfairness of the termination process. A failure to allow the worker to respond to all reasons for the dismissal and the limited time given for the response were highlighted by Commissioner McMahon as being unfair, especially since the employer was aware of the particular vulnerability of the employee. Given these cases have both found unfair dismissal but reduced the quantum of damage based on employee conduct, there are several lessons for employers.

First, an employee must have clear guidance on procedural fairness when considering the termination of employees. These processes must ensure that all employees are given an adequate opportunity to respond and where appropriate, an opportunity to improve their conduct. It is not enough that there is a sufficient reason to terminate an employee, there must also be procedural fairness in the steps taken prior to termination. Although APIC were able to demonstrate that they had a valid reason to terminate the employment agreement, it failed to follow the requirements of the Fair Work Act 2009 and therefore was required to compensate the employee.

Second, companies must have clear mechanisms for dealing with employee complaints. Although the Principal of APIC was acknowledged to have made many attempts to address the concerns of the employee, there was a failure to conduct an investigation, even though it was agreed to on two occasions. Complaints handling procedures must be consultative with those affected and if the employer has agreed to a course of action, they must either abide by it or explain why they have chosen another path.

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