This is an extract of our Bullying And Anti Discriimination document, which we sell as part of our Employment Law Notes collection written by the top tier of Monash University students.
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Topic 9: Bullying and Anti-discrimination Bullying?
What laws can deal with bullying?
o Occupational Health and Safety Laws
? Employer has a legal duty to provide a workplace that is safe and without risks to health o Workers' compensation laws
? Psychological injuries are covered o Crimes Act 1958 (Vic) Brodie's Law
? Provisions based on stalking
? Bullying must be serious
? Includes physical, psychological and cyber bullying
? Up to 10 years jail o Equal Opportunity Act 2010 (Vic)
? Have to show that the bullying occurred because of certain characteristics o Fair Work Act
? Claim for unfair dismissal (as bullying may amount to a forced resignation)
? Claim for FWC conference or Court orders under general protections (as injuring an employee in their employment is adverse action - but you would have to show that the bullying was because you had a workplace right)
? Part 6-4B - express provisions regarding bullying o Common law liability
? Each employer has a 'duty to take reasonable care to avoid exposing its employees to unnecessary risks of injury' Hamilton v Nuroof 1956
? This duty is imposed through a term implied by law into the employment contract, but it also arises through the law of tort.
? Whether an employer will have breached its duty of care will depend on the facts of each case. As a general rule, however, the courts will first consider whether a reasonable person in the employer's position would have foreseen a risk of injury to the employee Part 6-4B FWA o This part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying s 789FA o A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under s 789FF(1)
? Worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force: s 789FC(2)
? Contractor or subcontractor
? Employee of contractor or subcontractor
? Employee of a labour hire company who has been assigned to work in the person's business or undertaking
? Apprentice or trainee
? Student gaining work experience
? Reasonably believes: subjective test o When is a worker bullied at work?
? A worker is bullied at work if:
While the worker is at work in a constitutionally-covered business, an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member and
? That behaviour creates a risk to health and safety s 789FD(1) o Constitutionally covered business includes s 789FD(3)
? A constitutional corporation, the Commonwealth, a Commonwealth authority, a body corporate incorporated in a Territory; or the business or undertaking is conducted principally in a Territory or Commonwealth place
? Doesn't cover any employees of a non-incorporated business, charities, government departments e.g. in McInnes the Peninsula Disability Support Services was not a CCB because it did no trading
? What is at work?
? There must be a temporal connection between the conduct which constitutes bullying and the work
? However bullying through a non-work medium e.g. facebook can still constitute bullying at work
? "at work" includes being on a break - and the perpetrator need not be at work at the time they bully o Exceptions
? Reasonable management action carried out in a reasonable manner s 789FD(2)
? A smaller bonus does not usually constitute bullying unless it is somehow punitive Tao Sun 2014
? Performance reviews: Business efficacy requires performance reviews to be conducted whenever deemed necessary by the employer Tao Sun 2014
? Can't argue that a task beyond skill level is bullying (this sort of argument would open the floodgates) Tao Sun
? Emotional state may be relevant in determining whether management was performed in a reasonable manner SB
? What if the bullying commenced prior to the operation of the provision?
? Applicants can rely on pre 1 Jan 2014 conduct if they can demonstrate future risk. If the evidence suggests that the conduct is not going to continued, the FWC will not have jurisdiction o The FWC must deal with applicants promptly, within 14 days after the application is made s 789FE(1) but can dismiss an application if it involves matters which relate to the Australian defence, national security, covert operations or international federal operations s 789FE(2)
? Compensation is not possible o Orders made s 789FF:
? If the FWC is satisfied that the worker has been bullied AND there is a risk that the worker will continue to be bullied, the FWC may make any order it considers appropriate (other than a pecuniary penalty) to prevent the worker from being bullied at work s 789FF(1)
? Can't make a bullying order if the employee is sacked or has left, as bullying orders are designed to impact bullying as a continuous thing
? Orders can be made against persons other than the employer
? Orders can be very specific
? Confidentiality of parties is protected
The FWC must take into account any grievance procedures available to the employee and any final or interim outcomes arising out of these procedures, and any other matter they consider relevant s 789FF(3)
? Example of order Applicant v Respondent [21st March 2014]
o If a person contravenes a s 789FF order, this is a civil remedy provision s 789FGAnti-Discrimination - Equal Opportunity Act 2010 (Vic)??
Objectives of the Act o Amongst others:
? to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that---
? discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;
? equal application of a rule to different groups can have unequal results or outcomes;
? the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures; What is discrimination?
o Discrimination means direct or indirect discrimination s 7(1) o Discrimination on the basis of an attribute includes discrimination on the basis s 7(2) Example a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination; b) of a characteristic that a person with that attribute generally has; c) of a characteristic that is generally imputed to a person with that attribute; Ansett v Wardley d) that a person is presumed to have that attribute or to have had it at any time. o For the purposes of subsection (2) if a person with a disability is accompanied by or possesses an assistance aid, being accompanied by the assistance aid is taken to be a characteristic that a person with that attribute generally has
? Assistance aid means equipment, a person, or a dog. Direct Discrimination o Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute s 8(1) Example
? Question often posed: whether the complainant has been treated differently than they (or a hypothetical comparator) would have been if they lacked the relevant attribute
? e.g. unlawful bullying or harassment, denied a benefit that others have received, being provided a benefit on unfavourable terms, unfair allocation of tasks, unfair rostering, exclusion from communications, refused essential resources, being subjected to humiliation
? Onus is on applicant o In determining whether a person directly discriminates it is irrelevant whether:
? The person is aware of the discrimination or considers the treatment to be unfavourable s 8(2)(a)
? The attribute is the only or dominant reason for the treatment, provided that it is a substantial reason s 8(2)(b)
? Not dominant or sole reason o Motive is irrelevant to discrimination s 10 Indirect discrimination
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