Our 'TOP 10' Employment, Workplace & Ssfety issues from 2014

1. IMPLIED TERM OF TRUST AND CONFIDENCE? HIGH COURT SAYS "NO" ...

   After many years of uncertainty, the High Court finally clarified in September that there is no implied term of mutual trust and confidence in employment contracts under the common law in Australia.

   The High Court's decision in Commonwealth Bank of Australia v Barker[1] closes off the implied term as a potential cause of action for employees seeking redress against various forms of adverse or unreasonable treatment by employers.

   However, the High Court left open the possibility of the implied term of good faith as a basis for such claims, and there is already some evidence that lawyers representing employees are exploring this option.[2] Of course, employers also need to remain mindful of possible claims under the unfair dismissal, anti-bullying and general protections provisions of the FW Act, as well as health and safety and anti-discrimination legislation.

2. WORKPLACE BULLYING CLAIMS LOW

   The expected avalanche of claims in the Fair Work Commission (FWC)'s new anti-bullying jurisdiction did not eventuate. In the nine months to 30 September, 532 applications for anti-bullying orders were lodged, with an order being made in just one of these cases (several other orders have since been made).

   The general trend in the relatively small number of contested bullying cases has been to give a broad interpretation to the concept of "reasonable management action" which does not constitute bullying.[3] Most of these decisions have arisen in the context of performance management, which has been perceived as bullying by the employees involved.[4]

   A test case decision handed down by a five-member Full Bench of the FWC on 19 December[5] held that social media posts (outside work hours) can constitute "bullying at work" - but only if the worker to whom they are directed reads them while at work. More generally, the Full Bench considered that a worker could be considered "at work" (for purposes of the anti-bullying provisions) "at any time the worker performs work, regardless of his or her location or the time of day" (the concept "is not limited to the confines of a physical workplace").

   Despite the lower than expected numbers of claims, and the decisions generally supporting the positions taken by managers, employers should remain alive to the possibility of bullying claims - and implement sound policies and training to create a positive workplace culture.

3. SEXUAL HARASSMENT DAMAGES ON THE UP

   The Full Federal Court decision in Richardson v Oracle Corporation Australia Pty Ltd and Tucker [6] signalled an important shift in approach by Australian courts to the assessment of damages in sexual harassment cases. The Full Court awarded a former consulting manager employed by Oracle Australia damages of $130,000 for sexual harassment carried out by a male sales representative (for which Oracle was vicariously liable).

   The Full Court took into account changes in the value placed by society on compensation for loss of enjoyment of life arising from harassment, finding that the award of $18,000 damages at first instance did not reflect "prevailing community...