​When does “unfriending” someone on Facebook amount to bullying?

A recent decision of the Fair Work Commission (“Commission”) has provided further guidance on what constitutes “bullying” under the new anti-bullying jurisdiction and sparked further debate about the interplay of online etiquette, workplace relationships and the law.

In Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556, the Commission found that a director of the employer “unfriending” the applicant on Facebook formed part of a pattern of behaviour that amounted to bullying in the workplace, and which also included:

  • belittling and humiliating the applicant in front of third parties;
  • deliberately delaying performing administration work relevant to the applicant’s performance of her duties;
  • damaging the applicant’s reputation with one client;
  • ignoring the applicant and treating her differently to other employees; and
  • inappropriate comments about a possible same sex relationship which caused embarrassment to the applicant.

A copy of the decision can be found here.

In addition to providing further guidance on what is, and what is not, bullying, this decision provides another salient reminder for employers to ensure that their policies, and the training in relation to those policies, reflect the most recent developments in the law, and to reinforce with employees the potential consequences of their behaviour online for their employment.

This decision also highlights that just having a bullying policy in place will not be enough to prevent the Commission from making orders that bullying be stopped, and that employers need to not only demonstrate understanding of the behaviours that the policies are directed to preventing, but also act consistently with those policies.

The employer implemented a bullying policy after the incidents occurred and relied upon this to argue that there was no risk of bullying occurring in the future. However, the Commission found that the employer did not consider that any of the behaviour complained of constituted bullying, and therefore there was still a risk that the employee would continue to be bullied.

Whether or not “unfriending” another person on Facebook is the type of unreasonable behaviour that amounts to bullying in the workplace will depend on the circumstances of the matter – noting that there is a requirement for unreasonable behaviour to be repeated before the Commission can find that a worker has been bullied in the workplace, and make an order that the bullying stop.

PCS works with its clients closely to ensure that their behaviour and culture policies, including their bullying policies, are appropriate and reflect current best practice. PCS also provides training to ensure that employers and employees alike are aware of their rights and obligations under those policies.

Don’t Go There! Top 5 Questions to Avoid in Job Interviews

The job interview is the age old process of getting to know a potential employee in order to judge whether they would be a suitable fit for the role for which they have applied and for your organisation more generally.

Job interviews are a potential minefield from a legal risk perspective. Interviewers need to find out pertinent information about the candidate that could affect their ability to perform the job. But interviewers often stray into questions or comments on matters not linked to the ability to perform the job. The danger with such questioning is that it can be perceived as showing a form of bias, and could lead to an unsuccessful candidate bringing, amongst other potential actions, a discrimination or adverse action claim.

Here are five types of questions that we recommend interviewers avoid asking during a job interview – even if the intention in asking the question is purely conversational.

1. “How old are you?”

The potential for an age discrimination claim arises irrespective of where a candidate falls on the age spectrum – whether it is a school leaver looking for their first job or more mature worker looking to extend their working life. It is the qualifications and experience of the candidate relative to the inherent requirements of the role that are relevant, not their age.

2. “Are you pregnant?”/“Do you plan to start a family shortly?”/“Do you have any children?

No matter why you may ask this this type of question, it could be construed as potentially discriminatory based on grounds such as pregnancy and carer’s or family responsibilities.Under sex discrimination legislation it is unlawful to ask a woman during a job interview whether she is pregnant or intends to become pregnant if that information is requested in connection with determining whether to offer her employment. If you are seeking to determine whether a candidate’s actual or potential commitments outside of work may impact on their ability to perform a role, it is better to frame it instead by saying: “This role will, from time-to-time, require late nights at the office, weekend work or travel interstate or overseas. Would you have any difficulty meeting this requirement?”

3. “Do you have any health problems?”

Asking such a vague question that focuses on the applicant’s personal attributes could potentially lead to a discrimination claim on the ground of disability/impairment. The real purpose of this question is (or should be) to determine whether the applicant can perform the inherent requirements of the job, and what reasonable adjustments might enable the person to meet those requirements. Instead, the interview should ask something along the lines of: “This position involves some heavy lifting. Would you have any trouble performing this type of work?”

4. “Are you married?” or “Do you have a partner?”

Where there is no link that can be reasonably drawn between the answer to these questions and a requirement of a job, these questions should not be asked. Marital or domestic status is a protected ground of discrimination, and such questions may also give rise to discrimination claims on the basis of sexual orientation or preference.

5. “I detect a [insert country]’s accent, whereabouts are you from?”

In most circumstances, the nationality or ethnic origin of a candidate is irrelevant to their ability to perform the inherent requirements a role. As such, this question may open up the interviewer up to a claim of discrimination based on those grounds. If nationality or ethnic origin is relevant to the inherent requirements of a particular role, that is best disclosed in the advertisement for the role and must be justifiable in the circumstances.

While poorly or clumsily worded questions can lead to potential legal troubles, it is also important that those responsible for your recruitment feel comfortable in conducting interviews so your organisation has available to it all the relevant information about a candidate to inform your decision making regarding recruitment

At PCS we can work with you and your team to prepare for interviews to minimise the risks in the recruitment and selection process.

5 steps to an effective social media policy

Regulation of the use of social media is increasingly important for employers as the line becomes blurred between where the workplace starts and stops and what is private and what is personal. Below are our top 5 tips for an effective social media policy that will increase protection for your organisation while avoiding claims that the policy unreasonably infringes upon an employee’s private life.

1. A social media policy should provide the foundations of a workplace culture which encourages positive use of social media through training and guidelines.

Social media is a part of doing business for most organisations. Imposing a blanket ban on social media use or setting unrealistic standards of behaviour which impact on an employee’s freedom of speech or privacy is not always achievable or desirable. A clear social media policy outlining what is and is not permitted is essential. Ensure that the social media policy is a working document that remains up-to-date with technological changes and training occurs regularly to ensure that employees are aware of their obligations.

2. Ensure that the policy expressly states that it applies to private use of social media.

Whether social media is used on an employee’s private computer, or when accessed remotely using an employer’s IT system, ensure that the policy clearly articulates that the policy extends to regulating the employee’s behaviour bother during and outside of work hours, to the extent in may have an impact on their employment or the organisation.

3. What happens on “tour”, stays on Facebook.

Anything that gets posted on social media is not truly private. It is not about where or when the behaviour occurs, but who the behaviour occurs in front of or with and whether the use of social media may bring the employer into disrepute.

4. Reinforce the policy through interactive training.

The effectiveness of any policy and strategy on social media is undermined without it being effectively communicated. In the context of unfair dismissal laws, a failure to have regular education and training on a policy could result in the dismissal for breach of the policy being found to be unfair.

Employers have the ability to discipline employees for conduct that is in breach of a workplace policy. A policy is there to be enforced and employers must make a conscious effort to implement the policy across the organisation. 

Do you want to introduce a social media policy in your organisation or do you have a social media policy that needs updating? Consider one of our Gold or Platinum Partnership Packages where your organisation can have 3 or more policies reviewed annually as part of one of our packages tailored to your organisation along with other inclusions such as discounts on litigation fees, discount on training fees and complimentary attendance at PCS webinars and events.   

Turnbull v Abbott: making change, from politics to the workplace

This morning, Australians are waking up to yet another change in our country’s leadership. Having succeeded in his bid to become Australia’s next Prime Minister, what questions should Malcolm Turnbull and his new Government be asking itself going forward? Perhaps surprisingly, the lessons for new leaders (or newly appointed heads of organisations) might not be that different.

What can and what can’t we do?

Political parties, like all organisations, are about more than just the leader. Views on change will differ and there may be some resistance. In moving forward, leaders must be able to analyse and understand their strategic disadvantages.

What are people thinking and why?

Change can make people nervous, whether it be in the form of a new Prime Minister or potential redundancies in a workplace. Leaders must communicate, often to the point of boredom, to ensure they understand and are understood by others.

Where do we need to go?

Just as when a political party replaces its leader, when an organisation changes its management, there will be questions about its future direction. A clear and well-planned vision of that direction is essential to success.

How will this affect how people interact with each other and us? 

Champions of change must ensure they know their stakeholders inside and out so they can manage the effect of change on internal and external interactions.

It’s clear that these questions are not peculiar to politics. Rather, they are the questions that confront any organisation attempting to implement change, and those that will be fleshed out by our expert panel on 12 November 2015 at the annual PCS Hypothetical.

Register now to ensure you’re there to learn how to be ahead of the game when it comes to organisational change.

R U Ok? Managing a mentally healthy workplace

R U OK? Day is a day dedicated to reminding people to ask family, friends, colleagues or even strangers the question “R U OK?” as a way of connecting on a meaningful level in order to reach out to anyone who may be struggling with depression and thoughts of suicide.

While R U OK? Day is one day of the year, the sentiment behind R U OK? Day applies all year round and what better place to reach out to people than in the workplace. Importantly, employers have the ability to create a culture where people feel confident asking and answering the question “R U OK?”

Prevalence in the Workplace

Mental illness is the third most prevalent injury/illness in Australia with 16% of employees experiencing mild levels of depression and a further 5.5% experiencing symptoms of clinical depression (moderate to severe). [1] What is most concerning is that 91% of employees believe that mental health in the workplace is important, but despite this, only 52% of employees believe their workplace is mentally healthy. [2]

Recognising Mental Health Conditions at Work

The first step in facilitating support to those experiencing mental health conditions is to recognise the signs and symptoms of mental illness. Being informed about symptoms, or early warning signs, can lead to intervention that can help prevent mental illness or reduce the severity of mental illness.

Indicators include:

  • physical symptoms including appearing tired, headaches, weight loss or gain, less attention to personal grooming;
  • increased absence from work;
  • erratic behaviour;
  • emotional responses;
  • increased workplace conflict;
  • low morale;
  • deteriorating work performance; and
  • withdrawal behaviour.[3]

Managing a Mentally Healthy Workplace

During recruitment, it is important to note that prospective employees should not be required to answer questions about a mental health condition except in limited circumstances where it will affect their ability to carry out the inherent requirements of the position or it will affect their health and safety and/or the health and safety of others. Employers who ask questions outside these limitations may expose themselves to a discrimination claim.

A prospective employer should limit questions of a job applicant to general questions about whether they are aware of any medical condition, symptom or other limitation that would prevent or inhibit them from performing the inherent requirements of the role and if a condition is disclosed, what adjustments (if any) are needed for the job applicant to perform the role.

While performance management is a critical tool for employers, it is also an aspect of employee relations which can be mishandled. A good performance management process is an important aspect of managing a mentally healthy workplace. Some tools for providing good performance management are ensuring that the employee has clear expectations around their role, responsibilities and accountability and regular feedback is given and conversations revolve around how employers and employees can work together to achieve goals. Importantly, employers should take into account personal circumstances that may contribute to an employee’s performance issue and whether a mental health condition may be a contributing factor to the performance concern.

Managing Stressors in the Workplace

Employers can walk a fine line between maintaining productivity and creating a stressful workplace for employees. It is therefore an employer’s responsibility to address any concerns raised by employees about work stressors. An employer can help address job stress by:

  • providing strong leadership skills;
  • creating a hardworking but positive workplace where there is open communication, encouragement and support;
  • making sure that employees are involved in decision making and consulted about big decisions such as restructures;
  • reinforcing peer working relationships to help share workload and create a strong team bond; and
  • having effective training on managing and addressing job stress at employee level.

Most importantly, employers should endeavor to help employees maintain a healthy work-life balance. Encouraging employees to take breaks and leave helps prevent burn out and boosts employee morale.

Building a Mentally Healthy Workplace

While it is impossible to prevent mental illness occurring in the workplace, employers have a significant role in helping reduce the harms associated with mental health and avoiding exacerbating any existing mental health conditions. While building a mentally healthy workplace cannot be facilitated overnight, simply asking R U OK? can be the first step in opening the communication lines and giving someone a much needed listening ear.

Bullying and Mental Health Webinar

October is Mental Health Month and in light of this, PCS is holding a webinar conducted by Director, Deivina Peethamparam on “The Impacts of Bullying on Mental Health”. For more information or to reserve your spot, please click the following link.

PCS October Webinar : Mental Health In The Workplace

Redundancy payments: what is the “ordinary and customary turnover of labour”?

The redundancy provisions of the Fair Work Act 2009  (Cth) (“FW Act”) create an exception to an employer’s obligation to make a redundancy payment to an employee in circumstances where that redundancy is “due to the ordinary and customary turnover of labour”. Few decisions have considered what this term actually means, making last week’s decision of the Fair Work Commission (“FWC”) in National Union of Workers; United Firefighters’ Union of Australia v Compass Group Pty Ltd [2015] FWC 6055 highly significant.

Facts

Compass Group Pty Ltd (“Compass”) provides contracting services to the Department of Defence (“Department”). In late 2014, for a combination of reasons, Compass elected not to seek to renew its contract to provide fire rescue, store and transport services to the Department and, as a result, made a number of employees redundant. Compass argued that the applicable enterprise agreement did not require it to make redundancy payments to the employees because the terminations of their employment were “due to the ordinary and customary turnover of labour”. 

Decision

The FWC held that the terminations of employment were notdue to the ordinary and customary turnover of labour” and that the employees were entitled to redundancy payments.

  • The “general nature of the business” was not such that employment usually ended at the conclusion of a contract between Compass and a customer of Compass. 
  • Here, the redundant employees had been employed for more than six years and their roles had continued across a number of contracts between Compass and the Department. This gave them a “reasonably settled expectation of continuing employment”.
  • The relevant employment contracts did not “clearly tie the duration of employment” to the duration of a contract between Compass and its customers. 
  • Although Compass’ decision not to renew a number of the relevant contracts with the Department was “primarily… commercial”, there “should not be any fundamental distinction in principles based on causes of redundancy”. 

Conversely, the FWC provided some guidance on when a termination may be said to be “due to the ordinary and customary turnover of labour”.

  • The exception will be relevant where an “employee is dismissed for reasons relating to… performance, or where termination is due to a normal feature of the business”.
  • This may include situations where employment in a business is intermittent due to the nature of that business. For example, where employment is “seasonal, casual, or linked to the duration of a particular contract or task”. 

Lessons for employers

  • Redundancy is redundancy: if a position is redundant for the purposes of the FW Act, the reason for the redundancy does not alter an employer’s obligation to make redundancy payments (subject to legislated exceptions).
  • Attracting the “ordinary and customary turnover of labour” exception:particularly in light of the Compass decision, this exception is quite is limited. However, there are ways in which employment contracts can be geared toward it. For example, with a properly drafted fixed-term contract which links an employee’s employment to a particular commercial agreement.
  • Otherwise limiting redundancy obligations: if an employer is genuinely concerned about its capacity to make redundancy payments, the FW Act contains mechanisms whereby employers can apply to the FWC to limit their obligation to make such payments in certain circumstances.