Monthly Update—Australian Labour & Employment

Edited by Adam Salter

HOT OFF THE BENCH—DECISIONS OF INTEREST FROM THE AUSTRALIAN COURTS

$600,000 IN DAMAGES AWARDED TO WORKPLACE BULLYING VICTIM

A recent Victorian Supreme Court decision has highlighted the need for employers to take swift action when an employee reports workplace bullying. The 61-year-old part-time employee was awarded $300,000 in damages for pain and suffering for a severe psychological condition that resulted from years of sustained intimidation, bullying and harassment from her manager, together with $292,554 for pecuniary loss. The Court found that the employee experienced a "pattern" of bullying behaviour including a book being thrown at her and repeated verbal attacks from her manager, among other incidents over a four-year period. Back in 2003, and again in 2005, the employee notified her employer about the tension with her manager and the Court was satisfied that had the employer acted promptly, the employee would not have suffered any (or any significant) psychological injury. The Court was also critical of the employer for misleading the employee that it was taking action to deal with the complaint (e.g. promising to implement a workplace conduct policy) when it did not. In finding the employer vicariously liable for the conduct of the manager, the Court emphasised that an employer cannot abrogate its responsibility for assessing the risk of injury to an employee. Once a complaint is made, the employer has a positive obligation to investigate. Swan v Monash Law Book Co-operative (2013) VSC 326 Reflection for employers: With a new Federal bullying complaints jurisdiction commencing on 1 January 2014 and Safe Work Australia in the process of finalising a Code of Practice on bullying, there is no doubt that workplace bullying is under the spotlight in Australia. If your organisation does not already have a policy, it should be a priority to develop and implement one. We recommend employers review their policies to set standards of appropriate workplace behaviour and ensure appropriate processes are in place to address grievances.

BARGAINING UPDATE: FWC "DISLIKES" MAJORITY VOTE CONDUCTED ON FACEBOOK

The Fair Work Commission ("FWC") has held that Facebook "likes" are not enough to show that a majority of employees are in support of an application for union registration as an enterprise association. In a battle for members, a new union iCabin Crew Connect ("Union") applied to the FWC to become a registered union...