Employment Law - Workplace Bullying
Date: February 17, 2006
Authors: LAC Lawyers
Workplace bullying has been with us ever since the advent of the Industrial Revolution. Interestingly in New South Wales the Office of Industrial Relations of the NSW Department of Commerce provides scant information about this anti-social workplace behaviour. Research indicates that workplace bullying is widespread and that it is more prevalent that harassment. What is also interesting is that in New South Wales there is no statutory definition of bullying. In point of fact Butterworths Australian Legal Dictionary is also mute on this point. The Law Society of NSW has offered the following definition of bullying: "Unreasonable and inappropriate workplace behaviour includes bullying, which comprises behaviour which intimidates, offends, degrades, insults or humiliates an employee possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour." Importantly, employees have a duty under Occupational, Health and Safety laws to find out about bullying and take steps to prevent it. Under the NSW Occupational Health and Safety Act 2000 an employer has an obligation to ensure the health, safety and welfare of all employees and this extends to bullying. Employers also have a duty to take reasonable care for the safety of their employees at work. Essentially bullying is repeated inappropriate behaviour directed against a person by one or a number of other employees in the course of employment which could reasonably be regarded as undermining an individual's right to dignity at work.
Bullying Behaviour
Bullying behaviour is not only restricted to employees but it may involve anyone with whom employees of the business come into contact in the ordinary course of their employment whilst at work. Bullying may be active or passive, direct or indirect, physical or psychological but it does include:
-
Unacceptable language and rudeness;
-
Coercive behaviour directed against someone including their property;
-
Unreasonable teasing;
-
All forms of intimidating behaviour including physical assault or threats;
-
Marginalising or ignoring someone;
-
Any form of demeaning behaviour whether business or personal which serves to denigrate the individual being attacked;
-
Abuses of authority.
What is not Bullying
Employers have the right to supervise, direct and control work and they have the responsibility to monitor workflow and gauge performance. They are entitled to set reasonable goals and standards including KPIs and deadlines which have to balanced against the responsibility to look after the health, safety and welfare of their workforce.
The Consequences of Bullying
Different employees react differently. Bullying essentially may result in unwarranted stress, ill health, inability to make decision, incapacity to work, depression, physical injury and more. Wherever bullying occurs there is the potential for legal action. There is a body of law which is developing which suggests that an employee can sue his employer for a breach of an implied duty of trust and confidence. Bullying and harassment seems to fit squarely written this. Employers need to exercise care!
General Legal Requirements
Legislation, Australian Workplace Agreements, Certified Agreements, Industrial Awards and the Common Law cover the field. Primarily Industrial, Occupational Health and Safety and Anti- Discrimination Legislation applies to this area. In the latter bullying may sometimes involve harassment or discrimination where a person unreasonably picks on a personal characteristic such as race, sex, pregnancy, marital status, religious beliefs, disability or age which causes another to feel embarrassed, humiliated, offended or intimidated.
Action
Bullying should never be tolerated under any circumstances. Employers can develop clear workplace guidelines, practices and policies to safeguard everyone. Reducing the risk of exposure to workplace bullying would assist employers to satisfy their general duty of care to protect themselves and their employees.
Irrespective whether employer or employee where workplace bullying arises there is a legal exposure and the advice of an experienced employment lawyer needs to be secured.
Employment Law - Redundancy - Unfair Dismissal - Should Employers Offer a Lower Paid Position to Employees?
Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
The purpose of this article is to review Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011]FWA 5215. This case addressed issues of whether it would have been reasonable to redeploy the employee into a lower paying position when she was made redundant. She argued that it was not a genuine redundancy as the employer never offered her alternative employment in a lower paid position.
Employment Law - Unfair Dismissal or a Genuine Redundancy? When is Redeployment Reasonable?
Date: November 29, 2011
Author(s): Patrick Mulligan B.A., LL.B.
A common issue in termination of employment is determining whether the employee has been unfairly dismissed or made redundant. The employer may have told the employee that it is a genuine redundancy.
Employment Law - How your Criminal History may affect your future Employment
Date: March 14, 2011
Author(s): Mark Bostock LL.B., B.Bus.
A concern faced by many who are facing prosecution is the influence a conviction may have on them should they be found guilty of a criminal offence.
Employment Law - Employee Theft
Date: March 07, 2011
Author(s): Annette Wood B.A. (Policing), LL.B.
Employees stealing from employers in an increasing problem. This is increasingly evident when approximately 80% of workplace crime is carried out by employees. Employee dishonesty is a crime, it can take many forms such as embezzlement of funds, false invoicing, theft of cash, false inventory, payroll fraud and computer fraud.
Employment Law - Restraint of Trade - Cascading Clauses
Date: December 20, 2010
Author(s): LAC Lawyers
Restraint of trade has garnered an ever increasing amount of attention over the past few years as employers attempt to restrain former employees in their conduct after they leave their employ.
Employment Law - Unfair Dismissal and Discrimination Provisions
Date: December 07, 2010
Author(s): LAC Lawyers
If you can answer yes to any of the following questions then this article on Unfair Dismissal and Discrimination is for you
Unlawful Discrimination Claims and Limitation Periods
Date: December 01, 2010
Author(s): LAC Lawyers
Having established your right to make an unlawful discrimination claim, the next step that one needs to consider is the limitation period for the lodgement of such a claim.
Employment Law - The Rights of an Employer and their Employee
Date: October 08, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
With the Law in this area constantly changing, many employers and employees are uncertain as to their rights with respect to such things as employment contracts, termination of employment and redundancy.
Employment Law - You Have Been Terminated, Does it Amount to Unfair Dismissal?
Date: October 08, 2010
Author(s): LAC Lawyers
Organisations with It is becoming more rampant in the current times that an employee is found to have been terminated. Termination of employment can take several forms and unfair dismissal seems to be a common occurrence.
Business and Commercial Law - Restraint of Trade
Date: October 08, 2010
Author(s): LAC Lawyers
Key employees have always been the cornerstone of every successful business or enterprise and great difficulties are caused by the sudden loss or departure of key employees which in turn could harm the relationship between the business and its clients. Key employees have over the years enjoyed a close relationship with clients and losing them would have a detrimental effect on the management and reputation of the business.
Small Business Fair Dismissal Code - Termination Of Employment Rules For Small Business Under The Fair Work Act 2009 (Cth.)
Date: July 30, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
One of the significant changes made to unfair dismissal laws by the Rudd Government under the Fair Work Act 2009 was the introduction of the Small Business Fair Dismissal Code (“the Code”). The Code included a check list for employers to complete when terminating employment. Small employers hoped that by complying with the check list, it would be easier to dismiss staff.
Employment Law - Unfair dismissals under the Fair Work Act
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act 2009 (Cth) became fully operational from 1st January 2010. The Fair Work Act changed the rights of employees and responsibilities of employers relating to dismissals.
Employment Law - Unfair dismissals under the Fair Work Act - Common Law Contracts
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Finally, common law contracts of employment will continue to regulate a large number of employment relationships under the Fair Work Act. This will continue to be the case notwithstanding the creation of ‘Modern Awards’ by the Australian Industrial Relations Tribunal since January 2010. These Modern Awards cover ten modern award conditions which are similar to the National Employment Standards that provide the basic safety net for employees.
Employment Law - Unfair dismissals under the Fair Work Act - General Protection Provisions
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act incorporates general protection provisions in Part 3 – 1. This Part incorporates the type of protection provided under unfair dismissal and freedom of association provisions which was incorporated into the Work Choices legislation. The unlawful termination provisions of Work Choices have been re-enacted in Part 6 – 4 of the Fair Work Act. However, the Fair Work Act provides that a person may not apply for help against an unlawful termination if they are also entitled to challenge the dismissal under the general protection provisions.
Employment Law - Unfair dismissals under the Fair Work Act - Remedies and Entitlements
Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Remedies under the Fair Work Act are largely the same as under Work Choices. Reinstatement is the primary remedy. However, Fair Work Australia’s power to reinstate has been increased to order reinstatement to ‘associated interties’ – in other words to other companies in a group.
Employment Law - Can Employers Be Stopped From Discriminating Against Employees Upon The Basis Of Lifestyle Or Philosophical Beliefs As Opposed To Religious Or Political Beliefs?
Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
An English Decision and its Implications for Australian Emloyment and Discrimination Law
Employment Law - Employee and Employer Duties in Common Law Employment Contracts
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
In addition to the express terms of a common law contract of employment, the contract may also include implied terms.
Employment Law - Restraints Of Trade: Restraining Former Employees When The Work Agreement Has Ended
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employment restraints are contractual terms which seek to limit the activities of the employee once their period of service ends.
Employment Law - The New Fair Work Act - Contracting With Employees (3)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Essentially, with the introduction of the Fair Work Act, there are two ways in which an employer can contract with the employees in its workforce. The first is by way of common law contracts of employment. This is the subject of a separate LAC Lawyers’ article available through the website.
Employment Law - The New Fair Work Act - Collective Agreements (4)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employment Law - The New Fair Work Act - Consequences & The Agreement Making Process (5)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
If a workplace agreement replaces guaranteed agreement terms or conditions in a reference instrument with benefits that may or may not be realised during the life of the agreement, the Workplace Authority Director would consider these arrangements to be a reduction in the employees’ terms and conditions.
Employment Law - The New Fair Work Act - New National Employment Standards (2)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Under the Fair Work Act, the new National Employment Standards provide a new national safety net, irrespective of whether or not businesses enter into a Workplace Agreement.
Employment Law - The New Fair Work Act - What Is It and What Does It Do (1)
Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
On Friday, 20 March 2009, the Fair Work Bill was finally passed by the Australian Senate after Family First’s Senator Fielding voted with the Government after doing a deal in relation to the unfair dismissal provisions. It received Royal Assent on 7 April 2009.
Success in an Appeal to a University Body for an Accusation of Plagiarism
Date: August 04, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employment Law - The Three 'R's' & Unfair Dismissal
Date: July 04, 2009
Author(s): LAC Lawyers
What we’re referring to here is not the traditional ‘three R’s’ associated with education, but rather, the ‘R’ words in the context of employment and industrial law: resignation, retrenchment, and redundancy. Perhaps the word ‘retirement’ could also be added. This has great relevance in the current economic climate.
Employment Law - Part 1 - How will the new workplace relations laws introduced on 1 July 2009 affect you?
Date: July 04, 2009
Author(s): LAC Lawyers
The introduction of new workplace relations laws through the Fair Work Act 2009 has changed employment law in Australia as we know it. The aim of the Australian Government in implementing this change is to effectively balance the various needs of employees, employers and unions with a view to ensuring Australia becoming a better country financially and guaranteeing minimum workplace standards and maintaining workplace rights.
Employment Law - Redundancy - Transmission of Business
Date: July 04, 2009
Author(s): LAC Lawyers
Your employer writes to you informing you that the company has sold its business together with its assets to another entity and that you are to re-apply for the same position in the new company. What are your rights? Have you been terminated? Are you entitled to claim redundancy payments?
Employment Law - General Employee Entitlement & Redundancy Scheme (GEERS)
Date: June 05, 2009
Author(s): LAC Lawyers
If you have been made redundant or have lost your job because your employer has gone bust and you have not been paid your outstanding wages or entitlements, then you may be eligible for payment under GEERS.
Employment Law - Case involving an Employee failing to provide notice of resignation - Leiminer's case
Date: August 10, 2008
Author(s): LAC Lawyers
In Late July 2008 the Federal Magistrate’s Court for the first time ever fined an employee for failing to provide notice of resignation, although the magistrate questioned the employer’s actions in bringing the matter to Court.
Employment Law - Unlawful Termination of Employment, Where Do You Stand?
Date: September 11, 2007
Author(s): LAC Lawyers
The Workplace Relations Act 1996[1] (‘WRA’), states that an employee’s employment is not to be terminated on certain grounds and section 659(2) of the WRA provides the appropriate coverage.
Unfair Dismissal - Your In the Wrong Class?
Date: September 11, 2007
Author(s): LAC Lawyers
The unfair dismissal provisions of the Workplace Relations Act 1996[1] (‘WRA’) are buried in the detail of the Act and for an employee to determine whether they have a valid unfair dismissal claim they need to establish if any exclusionary provisions apply to their particular employment circumstances.
Employment Contracts and Restraint of Trade Clauses
Date: April 22, 2007
Author(s): LAC Lawyers
This paper explores restraint of trade and confidentiality agreements between employers and employees. It is common for employers to have a global restraint clause to restrain departing employees from working for a competitor and that may not be sufficient.
Employment Law - The Enforceability of Post Employment Restraints of Trade (Vic.)
Date: December 18, 2006
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employing highly intelligent and highly qualified employees in a range of sophisticated commercial businesses is a risky business for employers.
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
The Benefits of Hiring A Lawyer
Date: August 16, 2006
Author(s): LAC Lawyers
The old adage “you get what you pay for” is as true today as it has ever been.
Why stay with your lawyer
Date: August 01, 2006
Author(s): LAC Lawyers
The lawyer/client relationship is a personal one and there are many reasons which will dictate who you can and cannot work with. If you don’t like your lawyer, should you change? Ultimately, the relationship between a lawyer and client must be built on mutual trust.
Employment Law – Unfair Dismissal and the Workplace Relations System
Date: March 26, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
The Federal Government has announced widespread changes to the Australian workplace relations system, by relying upon one of the heads of power under the Australian Constitution, namely the Corporations Power.
Employment Law - What Type Of Employee Am I?
Date: February 13, 2006
Author(s): LAC Lawyers
Sometimes people become confused as to exactly which category of employment they fall in to. Of course there is the permanent employee or the casual or part-time or permanent part-time or even the independent subcontractor. The real difference between the various categories of employment is whether there is a contract of service or a contract for services.
Employment Law - Bullying - Adults in the schoolyard
Date: September 26, 2005
Author(s): LAC Lawyers
The idea of bullying has long been associated with naughty children in a schoolyard. But in recent years, there has been increased awareness and recognition in Australia that adults can be bullies too. Nowhere is this notion more alive than in the workplace, where high stress levels and hierarchies create a framework for day to day life.
Employment Law, Contract Law - Is a person who has a services company entitled to relief under s 106 of the Industrial Relations Act (NSW)?
Date: September 26, 2005
Author(s): LAC Lawyers