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

In this edition:

  • Fair Work Commission finds defriending on Facebook can contribute to workplace bullying;
  • More than $20,000 in penalties awarded for an employee’s $181 loss; and
  • Gender pay gap measure proposed for Fair Work Act.

Fair Work Commission finds defriending on Facebook can contribute to workplace bullying

While defriending a colleague on Facebook won’t alone satisfy the threshold of ‘bullying’ under the Act, a recent decision by the Fair Work Commission (FWC) makes it clear that in addition to other, repeated unreasonable behaviour, it may contribute to a finding that bullying has occurred at work.

In this case an application for a ‘stop bullying order’ under the Fair Work Act 2009, was made by RR, a real estate agent who alleged to have been repeatedly bullied by two superiors in her workplace, culminating in the ‘defriending’ of RR after a heated dispute between herself and the co-director.

The allegations

RR alleged 18 separate instances of unreasonable bullying behaviour experienced at work from November 2013 to January 2015.

The FWC found that eight of these allegations were substantiated. They included:

  • RR felt belittled and humiliated when she attempted to sign for a package at the workplace and the co-director aggressively said that RR was not to sign for parcels;
  • the co-director’s deliberate and unreasonable delay in performing administrative work for RR’s property listings;
  • the co-director was rude and hostile towards RR in reply to her verbal offer to answer the telephone after being told that she was not to answer the phone when the co-director was in the office;
  • the co-director acted unreasonably to damage the reputation of RR with one of RR’s clients by directly going against an agreement to afford a special dispensation to one of RR’s clients;
  • RR was consistently ignored in the morning when she entered the office and treated differently to other employees in this respect;
  • the principal made inappropriate comments about a possible same-sex relationship between RR and a client that caused RR embarrassment and were found to be unreasonable;
  • the co-director had a belittling attitude towards RR and made unreasonable comments to RR during the final confrontation between the two women before RR left the workplace – the co-director accused RR of being a ‘naughty little school girl running to teacher’ when RR went over the co-director’s head to the principal; and
  • the co-director had acted in a belittling and aggressive way towards RR by defriending RR on Facebook immediately after that final confrontation.

Following the final confrontation between the co-director and RR, RR left the workplace immediately and took two weeks’ sick leave.

RR provided a medical certificate stating that she was ‘unfit for work’, noted that she had prescriptions for medication from her GP and was receiving treatment from a psychologist for an inability to sleep, depression and high anxiety resulting from the bullying behaviour.

A recap on anti-bullying legislation

The FWC has the power to make anti-bullying orders if the FWC is satisfied that:

    • the worker has been repeatedly bullied at work by an individual or a group of individuals;
    • there is a risk that the worker will continue to be bullied at work by the individual or group; and
    • the behaviour creates a risk to health and safety.

If an application has met this criteria, the FWC may make an order it considers appropriate to prevent the worker from being bullied at work.

As previous FWC decisions have shown, it is not always easy to establish that ‘bullying’ has occurred, and is likely to continue.

The FWC’s decision

Deputy President Wells of the FWC was satisfied that the behaviour carried out by the co-director constituted bullying at work.

Counsel for the employer contended that because an anti-bullying policy and manual had been established since RR had left work, there was no risk of bullying behaviour occurring at work in the future. The FWC disagreed.

Deputy President Wells stated that ‘a lack of understanding as to the nature of the behaviour displayed at work has the proclivity to see the behaviour repeated in the future by the co-director’ and concluded that a stop bullying at work order should be made.

Having an anti-bulling policy and training are crucial 

In this case, the failure of RR’s employer (being her bullying superiors) to have an anti-bullying policy in place before the bullying occurred meant that it had failed to meet its WHS compliance requirements.

Further, the employer’s inability to recognise behaviours as ‘bullying’ emphasises the need for all workers, at all levels of an organisation, to be aware of what conduct will constitute unreasonable bullying behaviour for the purposes of the anti-bullying legislation.

In its decision, the FWC cited a list from a previous case that identified the types of behaviour that could be considered unreasonable for the purposes of the Act, these include: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.

Do your anti-bullying policy and staff training procedures recognise these behaviours?

More than $20,000 in penalties awarded for an employee’s $181 loss

The Federal Circuit Court has fined a human resources manager $1020 for failing to provide an employee with five weeks’ notice of termination, or pay in lieu thereof, in breach of the National Employment Standards. The employee was given two days less notice than he should have been by his employer – representing the equivalent of $181.66 in losses to the terminated employee.

The employer also received a penalty of $20,400 from the Court.

This case is a reminder that even those people within the organisations who may not necessarily have ultimate decision making authority, such as an HR manager, can still be found liable for contraventions of the Act. Section 550 states that a person who has been ‘involved in’ a contravention can be taken to have contravened the Act themselves. ‘Involved in’ can mean aiding, abetting, counselling, procuring, inducing or being knowingly concerned in the offending act.

The decision to terminate with two days less notice was deemed ‘bizarre’ by the Court especially since the HR manager admitted to being aware of the requirements under the Act.

In his decision which was clearly designed to act as a deterrent to others, Justice Simpson pointed out that the loss to the employee ($181.66) paled into insignificance compared to the time and expense of litigation not only for the parties involved but also to the public purse stating ‘without knowing the industrial tactics of this dispute, from the court’s point of view, it would seem to be a storm in a tea cup that should have been resolved at a very early stage.’

Gender pay equality measure proposed for Fair Work Act 

The Greens have introduced a Bill into Federal Parliament seeking to remove prohibitions on workers discussing their own pay with colleagues and others. Many employment agreements include clauses prohibiting such discussions.The Greens, who introduced the Bill, see wage transparency as being an important measure in exposing gender pay inequality, and hence to reducing its incidence.

The Bill would make sure that workers are allowed to tell their colleagues what they are paid if they wish to, without fear of retaliation from their employer. Pay secrecy can help hide discrimination, unconscious bias and bad decision making such as where two people are paid differently for doing the same job without obvious justification. Of course there can also be good reasons for pay differences for performing the same work, and pay secrecy has been known to give HR managers some small measure of peace from people complaining about unfair remuneration.

A new section 333B would be added to the Act under this proposed Bill to render any term of a modern award, enterprise agreement or contract of employment ineffectual if it:

  • prohibits an employee from disclosing the amount of, or information about, the employee’s pay or earnings; or
  • permits, or has the effect of permitting, an employer to take adverse action against an employee if the employee discloses the information about their pay or earnings.

The explanatory memorandum for the Bill states that this new section is to be read broadly and is intended to remove restrictions on employees’ rights in terms of pay or earnings disclosures. The memo also dictates that ‘pay and earnings’ will extend to entitlements such as bonuses, superannuation, share allocations, paid parental lease, allowance, professional memberships, paid overtime, and company cars or parking spaces.

Queensland Greens Senator Larissa Waters who sponsored the Bill has said that while gender inequality can seem like an all-encompassing problem, outlawing these gag clauses is a practical step to take to reduce the gender pay gap.


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