Recent Cases

Identifying a Workplace Bully

It has been estimated that one in thirty people, both male and female, is a bully. Whilst the term “bully” can cover a number of different personality disorders, there are a number of behavioural traits which are said to be common to the workplace bully. As well as looking at these behaviour traits, we will also discuss whether there are ways to avoid recruiting bullies into your organization.

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Tips for managing Generation Y employees

There has been much talk about the particular challenges that Generation Y employees bring to the workplace. Gen Y – the 4.5 million Australians born between 1978 and 1994 - is the second largest Australian generation and already constitute a significant force in the workplace.

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General Employment: Moss v. Lowe Hunt & Partners Pty Ltd [2010] FCA1181

Employer’s positive duty not to mislead or deceive potential employees

In a recent decision before the Federal Court of Australia, the Court considered the significance of representations made by employers, or directors on behalf of employers relative to inducements made to potential employees and consultants, to enter into a contract of service with the employer.

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General Employment: Legal update on the implied duty of good faith and confidence

A recent decision of the Western Australian Supreme Court has examined the application of the  implied term of good faith and trust and confidence in employment contracts. Justice Stephen Hall reviewed the Australian and English authorities and confirmed that the cases establish that an employment contract will generally include an implied term of good faith and confidence. Such a term applies to conduct during the currency of the employment, but does not apply to dismissal or the manner of dismissal.

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Enterprise Agreements Rejected

It is essential that the technical requirements for enterprise agreements set out in the Fair Work Act 2009 are met as a recent decision of Fair Work Australia (FWA) illustrates (see [2010] FWA 1769).

Applications for approval of a number of single-enterprise agreements were made by the bargaining representative for the relevant employers. All of the applications were rejected because they failed the “no disadvantage test” and concern was expressed that the statutory declarations supporting the applications were not properly witnessed and were “misleading”.

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The Corporations amendments

The Corporations Law now contains important restrictions on a corporation's ability to make very large termination payments to outgoing executives. Shareholder approval will now be required for executive termination payments in excess of one year's salary. The new provisions will apply to employment arrangements entered into after 24 November 2009.

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National Employment Standards now in effect

Employers must ensure that they have a good understanding of the operation of the National Employment Standards, which came into effect on 1 January 2010, particularly when recruiting new employees. Non compliance with the National Employment Standards or an attempt to enter into an arrangement with an employee which does not comply with the National Employment Standards would expose employers to penalties for breach of the Fair Work Act 2009.

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Social Media: Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA 735

In certain circumstances out of hours use of social media by an employee may justify termination of their employment.

The case of Rose v Telstra established the principle that an employee may be validly dismissed for out of hours conduct if the conduct if likely to cause serious damage to the relationship between the employer and the employee, damage to the employer’s interests, or is otherwise incompatible with the employee’s duties.

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Bullying: Applicant v Respondent [2014] FWC 6285

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:

  • Telling him to ‘go back to where he came from’;
  • Treating him like a ‘slave’;
  • Criticising his every move and speaking to him in a condescending and patronising tone;
  • Fabricating non-existing performance issues; and
  • Making hurtful remarks and intimidating him as a method to force the Applicant to resign.

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.

 

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Bullying: Applicant v Respondent [2014] PR555329

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.

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Bullying: Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62

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.

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Breach of employment contract: Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030

 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. 

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