The full bench of the Fair Work Commission has ruled on the reach of the anti-bullying jurisdiction, holding that ‘at work’ means performing work (at any time or location) or engaging in employer-authorised activities.
The Fair Work Commission has revoked the only anti-bullying order that has been made since the jurisdiction was created after the conflict ended.
In this bullying case a manger undertaking performance management of a direct report was found by the Commission not to have engaged in bullying. The manager was instead held to be carrying out ‘an ordinary exercise of management prerogative’.
The Applicant, a senior employee with a Commonwealth department, applied to the Fair Work Commission for an order to stop bullying against his manager who he believed was malevolently micromanaging and intimidating him to force him to resign.
The Applicant alleged that his manager engaged in bullying behaviour, including:
As a result the Applicant claimed that he suffered high blood pressure, anxiety and insomnia. The Applicant made complaints to senior management and an internal investigation into two particular complaints was undertaken. The Respondent did not find any evidence of bullying. Prior to this, the Applicant had made complaints of bullying against his two previous managers which were unsubstantiated as they were actually genuine performance management actions.
The Applicant’s manager was a senior manager within the department and gave evidence as to several performance related concerns of the Applicant. The Applicant was put on a Performance Improvement Plan (PIP) for a period of five weeks and during this time his manager gave him continuous feedback on his performance. At the end of the process, the Applicant was found to have partially met only one of the five criteria. Notably, several examples of bullying identified by the Applicant related to performance issues contained in the PIP.
Decision
The Applicant argued that his manager micromanaged him in a bullying manner and the Commissioner found that he this was a genuine and honest belief. However, the Commission went on to find that the Applicant was not justified in this belief as the ‘bullying conduct’ was truly ‘an ordinary exercise of management prerogative’ in response to his underperformance. The application for an order to stop bullying was therefore dismissed.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.
A recent case in the Fair Work Commission (FWC) highlights how broad anti bullying legislation is, after a male employee was the subject of a number of orders, including refraining from exercising in front of a female employee whilst at work.
A female employee lodged an application for an order for her male colleague to stop bullying her. The FWC did not publish the names of the employees, the workplace or the history of the matter as the parties remain working together. However, the orders which were made by consent allude to the likely background of the matter.
A recent decision of Fair Work Australia has highlighted the need for employers to properly investigate employee complaints.
In Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62 an employee was awarded the maximum compensation payable under the Fair Work Act 2009 (Cth) (ie six months salary) after being forced to resign following “a course of harassment” from one of his managers.
The Federal Circuit Court has found for a lingerie store manager after her employment contract was not renewed following a complaint she made regarding the inappropriate sexual advances of a male director at a work function.
A former employee who was the chairman, company secretary and chief financial officer of mining company, Indochine Resources has been awarded approximately $3.7 million following the company’s breach of his employment contract by failing to pay his salary, superannuation, annual leave, club memberships and reimbursement for business expenses and unlawfully terminating his employment.
The Fair Work Commission has found that two employees of a small real estate business were being bullied by the Property Manager, with the Commission making orders that the employees have no contact whatsoever and requiring the business to implement an anti-bullying policy.
The Industrial Relations Commission of New South Wales has found that two employees, each with more than 2,000 hours personal leave, did not have their employment transferred to another entity, therefore meaning both employees lost their entitlements.
A former Westpac senior manager has won $70,000 after Westpac failed to pay him his discretionary incentive based bonus when he was made redundant. Westpac admitted that it failed to follow its own workplace policies concerning redundancy and bonuses.
The Full Court of the Federal Court has found that a workplace policy formed part of an employee’s contract of employment and that the employer’s failure to follow the policy amounted to a breach of contract.
The District Court of NSW has awarded a state manager $296,650.75 for the breach of his employment contract following his termination for being drunk at a training conference the morning after a work related dinner.
The Federal Circuit Court has found that an employee does not need to expressly accept an employment contract in order to be bound by its terms. Knowledge of the contract and acceptance of a pay rise is enough to signal to the employer that the contract has been accepted.
The NSW Supreme Court has ruled that the ANZ Bank did not need to prove that an executive leaked a confidential internal email to the media before summarily terminating his employment; it only had to have formed the opinion that he had.
Mr Bartlett was the NSW director of the Institutional Property Group for the ANZ. On 20 June 2012 Mr Bartlett was one of ten ANZ employees to receive an email which stated, amongst other things:
“No more new lending. We are closed for business. Do not tell the market or our clients.”
On 3 July 2012 a journalist based in Brisbane who wrote for the Australian Financial Review received a copy of the email in the post. The journalist advised the ANZ.
At the conclusion of an investigation which included a forensic examination of the handwriting on the envelope, the ANZ was of the opinion that Mr Bartlett had leaked the email because:
Mr Bartlett’s contract contained a clause stating:
“ANZ may terminate your employment at any time, without notice, if, in the opinion of ANZ, you engage in serious misconduct.”
Based on the opinion that Mr Bartlett had sent the letter, the ANZ summarily terminated his employment.
Mr Bartlett sued the ANZ for breach of contract alleging that he was not guilty of serious misconduct. He claimed damages of $9 million in respect of lost remuneration and bonuses, calculated on the basis that he would have worked for ANZ for a further ten years. He claimed that the ANZ could only terminate the contract if it could prove that he was actually guilty of serious misconduct, or alternatively, if ANZ could terminate on the basis of its opinion that he was guilty of serious misconduct, such opinion had to be reasonable, correct, formed in good faith and in compliance with various ANZ policies.
Decision
The Court rejected Mr Bartlett’s claim and found that the words “in the opinion of” were “not gratuitous”. The relevant fact was whether, in the opinion of the ANZ, Mr Bartlett was guilty of serious misconduct. The Court was satisfied that the ANZ held the opinion that Mr Bartlett sent the email to the journalist and that this amounted to serious misconduct. Accordingly, the ANZ was entitled to terminate Mr Bartlett’s employment without notice.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.
Qantas has recently won a case which found that two of its employees were not entitled to indefinitely maintain a job sharing arrangement.
The Full Bench of the Western Australian Industrial Relations Commission recently found that two Qantas customer service employees were not entitled to indefinitely maintain a job sharing arrangement.
The employees, Natalie Gartside and Helen Joyce commenced employment with Qantas in 2003 and 2004 respectively and signed contracts which provided for their employment on a permanent part-time basis, containing a clause that any subsequent positions that they held with Qantas would be governed by the 2004 contract.
In February 2008, Ms Joyce and Ms Gartside were transferred to a job-share arrangement in which they both worked 19 hours per week. After the commencement of their job share roles, Qantas send letters to the employees stating that the job share position was to be on a trial basis for six months with a view of it being extended. However, the employees did not agree with the letter and did not sign it.
There were a number of discussions between Qantas and the Australian Services Union between 2008 and 2012. Qantas was of the opinion that all job-share arrangements were for a fixed term, whilst the Australian Services Union, representing Qantas employees, argued that job share arrangements were ongoing. There was no agreement reached between the parties.
In December 2012, Qantas sent a letter to Ms Gartside and Ms Joyce inviting them to reapply for the job share positions as they were due to expire in February 2013. Qantas advised that their appointment was subject to operational or other business requirements.
The job share arrangements were extended to May 2013. The employees were then advised that Qantas could not offer a further job share secondment and would instead offer them a three month transition period to allow the employees to transition into new roles.
Ms Gartside and Ms Joyce commenced proceedings claiming that their job sharing arrangements were not for a fixed term and were ongoing.
Decision
The Full Bench found that the 2004 contracts of employment of Ms Gartside and Ms Joyce contained a clause that Qantas could provide unilateral notice to change the employee’s hours of duty and therefore could terminate the job share arrangements at any time with notice.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.
The former head chef of North Wollongong Hotel has been ordered to pay his employer more than $70,000 after it was found that he swindled hundreds of thousands of chicken schnitzels through his wife’s company and profited more than $1.00 on every schnitzel piece. The Federal Circuit Court found that the chef had breached his contractual duty of fidelity and fiduciary duties that he owed to his employer.
The case of Fair Work Ombudsman v Maclean Bay highlights the liability faced by a company and its director for sham contracting, with Maclean Bay and its director being fined in excess of $294,000.
This decision concerned the fate of the employment of an investment banker and one of the world's largest investment banks. It is a decision which illustrates the dangers, particularly for employers, of loose job descriptions and the limited scope of so-called 'entire agreement clauses'. The decision also confirms the difficulty of employers limiting the payment of entitlements by reference to a Deed of Release or attempting to unilaterally alter job descriptions.
An employee, who claimed she was sexually assaulted by her supervisor on a work conference has been awarded over $600,000 in damages after the ACT Supreme Court of Appeal upheld the decision that the employee had not consented to sexual activity and consequently that the supervisor committed a trespass.
An employee has been awarded $733,723 after successfully suing her employer for breach of the duty of care she was owed after the director systematically sexually harassed, intimidated and bullied her, with the result that she developed a psychological illness.