Can a bullied employee have their leave reimbursed?

David Weiler, Associate

An interesting question has been raised in a recent case of the Fair Work Commission’s (“Commission“) anti-bullying jurisdiction: Does the Commission have the power to order that an employer re-credit an employee’s leave that was taken as a result of bullying?

In the decision, Commissioner Hampton was presented with a case where an employee had not been attending work due to being subject to bullying and harassing behaviour. However, because the employer had taken extensive steps to address the issues raised in the initial application and there was evidence of an improved relationship between the parties since the hearing, he refused to make any of the orders sought by the applicant. These orders included, “Restitution (crediting) of all leave taken due to bullying matters, paid and unpaid.”

Although the Commission did not see fit to make any orders in relation to the employee’s application, it did:

“not discount the possibility that the Commission could consider including provisions dealing with leave taken as part of an order in this jurisdiction however the broader implications of the FW Act, including through the National Employment Standards – which deals with the minimum entitlements obligation of the parties in that regard, would need to be fully considered.”

Under section 789FF of the Fair Work Act 2009 (Cth), for the Commission to make a bullying order it must be satisfied that:

  1. the worker has been bullied at work by an individual or group of individuals; and
  2. there is a risk that the worker will continue to be bullied at work by the individual or group.

In the current case the Commission determined that the risk that the worker would continue to be bullied was not found and therefore it was not appropriate to make the orders sought by the applicant.

While the powers under section 789FF allow the Commission to make any order it considers appropriate, (other than an order requiring payment of a pecuniary amount), such an order must be made to prevent the worker from being bullied at work. Therefore, if an employee goes on leave as the result of being bullied and seeks through a bullying order that this leave be re-credited, he or she must demonstrate to the Commission how such an order would prevent further bullying

Based on these legislative requirements, it seems unlikely that such an order would be made especially considering the purpose of the anti-bullying jurisdiction, although the Commission has left the door open. It is not a tribunal for victims to seek compensation for being subjected to bullying but rather is a forum to facilitate the resolution of unsafe behaviours in the workplace. However, this does not detract from the need for employers to swiftly and comprehensively deal with bullying before it becomes such an issue that the victim feels like the need to remove themselves from the workplace.

Managing sickies in the wake of Australia Day

Michael Starkey, Graduate Associate

The Australian Chamber of Commerce and Industry predicted that 180,000 employees will have chucked a sickie on Monday to give themselves an extra-long Australia Day weekend, at a cost to employers of $62 million. From year to year, it is estimated that absenteeism costs the Australian economy around $27.5 billion – that’s roughly $2,741 for each employee in an organisation. Employers need not sit idly by as their organisation contributes to the statistics. Here are our tips on how to manage sickies and stop a “sickie culture” infecting your workplace.

Taking sick leave is a workplace right… within reason

Under the Fair Work Act 2009 (Cth), a sick employee is entitled to take personal leave (up to ten days per year) when he or she is not fit for work because of a personal illness or injury. Employers should be aware, however, that a number of notice and evidence requirements attach to this entitlement, including:

  • the requirement for an employee to give notice of the taking of leave as soon as practicable and to advise of the expected period of leave; and
  • the right of an employer to request evidence that would satisfy a reasonable person that the employee is not fit for work.

Employers should not hesitate to request such evidence (most commonly a medical certificate) if it has reasonable grounds for suspecting that personal leave is not being taken for a legitimate reason.

Disengaged employees are absent employees

Frequent sickies are often indicative of broader issues relating to employee engagement. Organisations which provide employees with opportunities for mobility and career advancement, collaborative work practices, and a variety of non-monetary benefits are organisations which encourage attendance at work. For tips on building employee engagement, see our previous article: “How to Warm Up Cold Employees: Building Engagement For Disengaged Team Members”.

The importance of planning ahead

It is essential that organisations develop written policies around the taking of leave in order to set cultural expectations and provide recourse for managing employees who take personal leave when they shouldn’t.

Leave policies may require that employees who are absent the day before or after a public holiday produce a medical certificate in support of their absence.

Further, such policies should make clear that employees wishing to take leave around a weekend of public holiday should do so by planning annual leave in consultation with management well in advance of the occasion.

CFMEU appeal refused: where to for general protections?

In the most recent edition of PCS’ quarterly publication, Strateg-Eyes, we took a look at a decision (Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76) in which the Full Court of the Federal Court (the “Full Court”) held that adverse action is not taken against an employee if that employee is dismissed due to the impact on the employer of the employee exercising a workplace right, rather than due to the exercise of that workplace right itself.

We can now report that the High Court has refused to grant the CFMEU leave to appeal that decision.

The High Court’s refusal is significant in that it cements as good law the Full Court’s view that there is a distinction between the impact and exercise of a workplace right. This means that employers may now be able to defend a general protections claim despite:

>    the employee in question exercising a workplace right; and
>    adverse action having been taken,

if the employee’s exercise of that right negatively impacts the business, and that impact is the reason for the adverse action being taken.

While such arguments (and their potential for success) will always play out in light of the circumstances (for example, the terms of any relevant modern award or enterprise agreement), there is no doubting the significance of this development.

On top of previous decisions (Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41) which have held that it is the subjective reasons of the employer that are relevant in determining whether adverse action has been taken for a “prohibited reason”, the High Court’s refusal has mounted another hurdle for employees to clear if they are to succeed in a general protections claim.

For further advice on what the High Court’s refusal might mean for your organisation, contact one of the PCS team today.

​BYOD Policy: Should You Consider One for Your Organisation?

There is no doubt that the prevalence of mobile devices in the workplace has increased exponentially and is likely to continue. Technology is changing the face of the workplace including how employees work, where employees work and when employees work.

Some organisations are taking advantage of the technological age by doing away with dinosaur computers chained to desks instead opting for laptops and tablets because of their flexibility, transportability and convenience. Some employers are even going as far as introducing bring your own device (“BYOD”) policies in the workplace thereby cutting the cost of employer provided devices.

So, should you consider a BYOD policy in your organisation?

What is BYOD?

Bring your own device or BYOD is the practice of allowing employees to use their personal devices (such as mobile phones, laptops and tablets) for work purposes in and/or outside of the workplace. BYOD is not limited to allowing employees to check emails or perform work on their laptops. It may also entail allowing (and even encouraging) employees to use workplace specific applications such as a remote desktop, clock in and clock out systems and intranet functions.

What are the benefits of BYOD?

An effective BYOD arrangement can be beneficial for an employer. Not only are there reduced business costs associated with not having to provide employees with computers and mobile devices, there are also benefits such as:

  • flexibility;
  • increased employee satisfaction (by way of using devices employees know, like and understand);
  • increased productivity; and
  • increased efficiency and opportunity.

Whether a BYOD arrangement will have a significant beneficial impact on an organisation will be determined on a case-by-case basis depending on the type of organisation and the information and type of devices used in the organisation. There are a variety of arrangements that can be tailored to suit the needs of the business, including a mix of employer-provided devices and employer devices.

What are the risks of BYOD?

When employees use employer-provided devices, an employer can configure the computer as they please and make strict policies about how it is used and monitor that usage. The difficulty with BYOD is monitoring and controlling how an employee uses their own device, especially since the employer is limited in its control.

Some of the risks associated with BYOD include:

  • privacy breaches;
  • unauthorised use;
  • excessive use;
  • vicarious liability; and
  • breaching workplace surveillance laws.

While these risks are not insignificant, there are many ways an employer can overcome and manage risk including implementing a BYOD policy or amending any existing electronic communications policy to incorporate BYOD. Many employers may consider that a ban on personal devices or taking a blanket approach is an effective means of exercising control and managing any risks. While this method may enforce security, it renders any electronic device useless and any benefits that personal devices bring to the organisation would also be eliminated.

Implementing BYOD in your organisation

Before considering adopting a BYOD scheme, employers may wish to review their electronic communications policy and make certain that it clearly states what is and is not acceptable use ensuring that it draws a line between personal and business use. An employer may wish to retain the right to monitor, access and review data on the personal device associated with the use of the device for business purposes (ensuring that they comply with any relevant workplace surveillance laws). It is also best practice to consider including provisions around employees obligations, such as obligations upon termination of employment regarding deletion of data. Having a BYOD policy in place as well as a clear electronic communications policy will assist in ensuring that when an incident does happen, there is a set of policies and procedures in place that all parties are aware of and have agreed to. That way, for example, an employee won’t be shocked when he or she is asked to hand over their device for a partial ‘wipe’ before leaving the organisation.

If you are considering implementing BYOD in your workplace and need help drafting a policy or reviewing an existing policy, please contact the PCS team on (02) 8094 3100.

​Closing the gender pay gap: how do we do it?

What role might allowing employees to freely discuss their salaries play in closing the gender pay gap? That is the question that will be considered by a Senate inquiry into the Greens’ Fair Work Amendment (Gender Pay Gap) Bill 2015 (the “Bill”) over the coming months.

The Bill’s Explanatory Memorandum asserts that “when pay is set in secret by individual negotiation, women are at a disadvantage” and that “pay secrecy can help hide discrimination, unconscious bias and bad decision making”.

Australia’s gender pay gap currently sits at around 17.9% based on average weekly full-time earnings.[1] Most would agree this is an issue that needs to be addressed; however, the idea of salaries being freely discussed in the workplace comes with other concerns for employers.

In theory, salary transparency has the potential to encourage productivity through competition if employees know that colleagues in similar roles are paid more than they are. However, this theory can only work in practice if employees’ pay correlates directly with employees’ performance. In reality, the factors that determine salary levels are multifaceted, dependent in part on market conditions, business performance at the time of employment, and the long-term value an employee is seen as adding to the organisation, for example.

In this context, discussions of salary between colleagues in the workplace may do more harm than good, by creating disharmony between employees. Additionally, such discussions threaten to place disproportionate emphasis on salary as the only indicator of an employee’s worth to an organisation. In fact an employer may show it values an employee’s contribution to the workplace in a number of ways, particularly when money is tight – for example, by providing:

  • pathways for career advancement, skill diversification and training and education;
  • flexible working arrangements; or
  • longer term incentives, like share and bonus schemes.

Further, it is an organisation’s prerogative to keep its financial position confidential. Such confidentiality is essential if an organisation is to have the freedom it needs to make strategic decisions in the interests of long-term growth and success, to the ultimate benefit of all stakeholders.

This is not to say that, as a practical matter, an organisation’s position with respect to pay and finance should be shrouded in total secrecy. Sharing certain information with employees can help an organisation’s leadership team to keep everyone on the same page and geared towards achieving organisational goals.

It is clear that in assessing the viability of strategies to close the gender pay gap, there are complex considerations at play. Employers need not wait for legislative change to play their part, however. By identifying obstacles to gender equality at an organisational level, employers can help overcome them, and should work to ensure that employees are rewarded based on merit rather than personal characteristics.


[1] Workplace Gender Equality Agency, Gender pay gap statistics, available at <https://www.wgea.gov.au/sites/default/files/Gender_Pay_Gap_Factsheet.pdf>, 3.

​Follow up: HR Managers beware

In June 2015, we reported on the potential for HR Managers to have personal penalties imposed on them for their involvement in breaches of the Fair Work Act 2009 (Cth) (the “FW Act”).

In a decision on the penalties[1], the Federal Circuit Court imposed a penalty of $1,020 on the HR manager for her involvement in the dismissal of an employee who was incorrectly given four weeks’ notice of termination rather than the five weeks’ he was entitled to under the National Employment Standards (the “NES”).

This decision sends a warning to all HR Managers, no matter their seniority, because it suggests that the Court is willing to impose a penalty on a HR manager, where:

  • there is involvement (no matter the impact) in the contravention;
  • there is an admission that the HR Manager is aware that the FW Act provides for minimum employment standards;
  • it is within the HR Manager’s authority to decide on how the minimum employment standards are administered; and
  • there is no satisfactory explanation of why, if a HR Manager is aware of these obligations, there has still been breach of the NES

Further, where the above knowledge is within a HR manager’s skill set, it will not be acceptable to assert that the error was “procedural and not a deliberate failure”. In addition, HR Managers cannot escape liability simply by arguing they were subject to the direction of the employer.

Importantly, Judge Simpson commented that “the penalty that I propose to make will be a warning to employers of the need to comply with the legislation to the letter” and imposed a penalty of $20,400 on the company. In relation to the HR Manager, the Court imposed a minimal penalty (which was 10% of the maximum penalty available) with Judge Simpson commenting that this was because the HR Manager’s conduct was significantly less serious than the conduct of the company itself and that she was not “heavily involved in the contravention”.

Tips for HR Managers

HR Managers must be aware of obligations under the FW Act and where an employer’s direction is inconsistent with these obligations, they should not turn a blind eye to the legal implications of the breach. Being aware that a contravention of the FW Act is happening or going to happen, in the absence of a satisfactory explanation as to why a breach still occurred, will likely be sufficient for a penalty to be imposed on the HR Manager despite not being actively involved in the decision making process.[2]

To reduce the risk of a penalty being imposed personally, HR Managers should ensure that they have a sound understanding of the FW Act and the obligations arising under it. If a HR manager is subject to a direction by the employer that they feel is inconsistent with the FW Act, they should work together with their employer to ensure compliance and appropriately documented any reasons for decisions. Not only will HR managers be personally avoiding a penalty being imposed, they’ll be protecting the company.


[1] Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 2762.

[2] Fair Work Ombudsman v Centennial Financial Services Pty Ltd(2010) 245 FLR 242.

​Wealth for TOIL? Time off in lieu of payment for overtime

Last week, the Fair Work Commission (the “FWC”) handed down a model term proposed to be inserted into modern awards to allow for employees to take time off in lieu of payment for overtime (“TOIL”). This interesting development coincides with the current debate about flexibility in the workplace, particularly in relation to the payment of penalty rates for weekend work.

The model term provides that each hour of overtime worked by an employee may be taken as one hour of time off during ordinary time hours in the event of agreement between the employee and his or her employer. Various safeguards have been devised, including:

  • an employer must not exercise undue influence over an employee’s decision in relation to TOIL; and
  • an employee may request at any time to be paid at the overtime rate for any time in lieu not yet used.

The concept of TOIL is astute and has the potential to benefit both employers and employees. For example:

  • employers may be able to increase operating hours without incurring the increased costs associated with overtime; and
  • employees for whom time (more so than money) is at a premium may be able to structure their working hours in a way that suits their responsibilities outside of work.

As was acknowledged by the FWC in its decision, TOIL has the potential to “encourage greater workforce participation, particularly by workers with caring responsibilities”.

Further, a recent survey of the FWC revealed that 32 per cent of employees ranked flexibility to balance work and non-work commitments as the biggest driver of their overall job satisfaction. This outweighed all other drivers, including the work itself, hours and pay.[1]

In a political context in which debate over the fundamentals of Australia’s workplace relations system appears to be intensifying, any measure that has the potential to align the interests of employers and employees is welcomed.

TOIL is just one mechanism by which employers can increase flexibility in their workplace and organisations should be proactive in determining others that may help them achieve the same. More flexible workplaces are likely to attract the best talent, have higher workplace morale and, consequently, experience increases in productivity.

If your organisation needs assistance in this area, contact one of the PCS legal team today.


[1] Fair Work Commission, Australian Workplace Relations Study, available at <https://www.fwc.gov.au/documents/awrs/AWRS-First-Findings.pdf>,47.

​The Impact of Bullying on Mental Health

Each year, mental health conditions of workers cost Australian employers over $10 billion. Bullying has been identified as one of the key causes of such mental health issues. The legal framework, the Fair Work Commission’s expanded jurisdiction to make stop bullying orders and increased regulatory scrutiny mean that employers must understand, manage and minimise bullying in the workplace.

What are the legal risks of bullying in the workplace?

Employers should not only be aware of the injuries, decreased productivity and absenteeism associated with bullying in the workplace, but also possible exposure to legal claims including:

  • an application by an employee who alleges they are being bullied to the Fair Work Commission (“FWC”) for a stop bullying order. It is important to note that orders made by the FWC may affect the employer even if the employer is not a party to the proceedings;
  • breach of the employer’s work health and safety obligations , including the obligation to ensure, so far as reasonably practicable, the health and safety of workers at work. This includes mental health conditions and anything that may trigger or exacerbate mental health conditions; and
  • claims for common law damages for negligence as seen in the case of Swan v Monash Law Book Co-operative [2013] VSC 326. In that case, the employer failed to act on complaints and the employee was awarded almost $600,000 for psychological injuries as a result of “sustained workplace bullying”.

​To Deed or not to Deed? That is the Question

Knowing when to offer terms to settle a matter (or “Deed” a person) is as much of a strategic decision as it can be a commercial decision. Offering an employee something in excess of their contractual or statutory entitlements can be the ideal sweetener for convincing them to agree to a release from existing or potential legal claims. It can also certainly save an organisation a lot of time and worry associated with litigation. Here’s our take on calculating your organisation’s exposure and considering if you need to do the Deed.

Consider a Deed if:

  • You’re in the midst of litigation, or there is significant potential for litigation: Even if you think your business might win, it is important that you do a cost-benefit analysis as to whether it is worth your business defending a claim, or if it would be better placed taking steps to bring the matter to an end. Standing on principle can, and likely will, cost more time and money than you bargained for. And even if you do “win” (in the legal sense), a court decision can be appealed – more than once. Strategically and commercially, it can be better to put a Deed on the table to put a matter to bed than sink resources into litigation.
  • There is significant financial or commercial risk to your organisation: If a claim or other potential consequences of a claim (for example, penalties imposed under legislation, which in certain circumstances can be up to $54,000 per breach) are significant from a financial or commercial perspective, they can threaten the ongoing viability of your business. In those circumstances, it is important to consider the risk of the financial impact of defending a claim or even an adverse decision against your business against the shorter term “pain” that may attach to settling the matter under Deed.
  • There is a significant reputational risk to your organisation: Depending on the type of claim involved, litigation or threatened litigation can have a significant impact on the reputation of your business. This is especially so if the matter is a sensitive one or one that may peak the interest of the media (for example, underpayment of employees or the termination of a high-profile executive’s employment). One way of minimising these risks is to resolve the matter under Deed, as Deeds typically contain a confidentiality clause requiring the parties to keep their lips sealed about the existence and terms of a Deed.

Reconsider the Deed if:

  • The cost of paying a ‘premium’ to settle is not justified in the circumstances: It is unlikely that an employee will enter into terms of settlement (and a Deed) unless they perceive that they are receiving benefits over and above their statutory or contractual entitlements. In many cases, and typically where executives are concerned, the employee’s contractual entitlements are far in excess of their minimum statutory entitlements, and the costs of defending a claim in respect of those contractual entitlements, when considered against the prospects of successfully defending the claim, can be justified by your business.
  • Settling the claim is unlikely to be in the best interests of your business: There will likely be occasions when principle triumphs over concerns about the potential cost of a claim in your cost-benefit analysis about whether to settle a claim. In those circumstances, you should be clear about why your business will not pursue a commercial settlement – whether it is to establish a precedent or because you are confident that your business can support its position. It is important to remember though, that how you communicate your business’ position may impact on your strategic options further down the track. For example, if circumstances do change, it remains open to your business to pursue settlement, but the likelihood of settling will be impacted by the relationship between the parties at that time.

There is a growing level of understanding about the commercial and strategic advantages of entering into a Deed – so don’t feel like it might appear as though your business is admitting defeat if it does enter into a Deed. However, it is also important to consider how the resolution of a matter will be communicated, as sometimes the perception created by the circumstances of a matter being resolved (including entering into a Deed) can be more damaging than your business taking the risk and losing.

These are general examples and every situation is different and has its quirks. If you need assistance with drafting, negotiating or entering into a Deed of Release, call PCS today.

​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.