07 December 2009

IRONY - When the Bully uses the FAIR WORK "Adverse Action" laws to obtain interlocutory injunction to stop potential dismissal

Case note: Fair work “adverse action” claim wins interlocutory injunction

Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 (25 November 2009).

Justice Collier of the Federal Court has issued an interlocutory injunction in favour of an Applicant to stop her potential dismissal.

The Applicant, Elizabeth Louise Jones, was the Chief Executive Officer of the Queensland Tertiary Admissions Centre (QTAC).

The Centre processes applications for admissions to the majority of undergraduate courses offered by universities in Queensland and also Bond University, The Australian Maritime College in Tasmania and to some courses at universities in Northern New South Wales. It also processes applications for diploma courses in Queensland Institutes of TAFE and other private providers of post-secondary education.

Ms Jones had been employed by QTAC since about 2002 without any issue being raised about her employment. From the beginning of this year, she was QTAC’s chief negotiator with the Australian Services Union (ASU) in the re-negotiation of the Enterprise Agreement governing the terms and conditions of QTAC’s employees. As a result of her involvement as the negotiator, she was the subject of a number of complaints by the ASU, named individuals and also some complaints which were made anonymously. An investigator was instructed to provide a report, and as a result of the investigator’s report, QTAC was of the belief that Ms Jones had acted in a way which amounted to “bullying or harassment of employees” (at [28]). Ms Jones claimed that the investigation instituted by QTAC into her behaviour was improper and that she was concerned, not only by the investigation, but also by the prospect that she could have her employment terminated.

In her application for an interlocutory injunction and for final relief, Ms Jones asserted that there had been various breaches of the Fair Work Act 2009 (Cth) and her contract of employment, that damages were not an adequate remedy and that on the balance of convenience an interlocutory injunction should be granted pending a final determination of her action.

Ms Jones was successful in arguing that there was a serious question to be tried in that there had been a breach on a prima facie level of the Fair Work Act. Paragraph [17] of the judgment sets out the summary of the submissions made by Ms Jones concerning the Fair Work Act. The summary reads as follows:

“[17] In summary, the case submitted by Ms Jones as to the existence of a serious question to be tried can be summarised as follows:

  • Section 340(1) of the FW Act provides that a person must not take adverse action against another person because the other person has a workplace right, or has or has not exercised a workplace right.
  • A “workplace right” means, inter alia, that a person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body (s 341(1)(a)), or is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument (s 341(1)(b)).
  • “Adverse action” is taken by an employer against an employee if, inter alia, the employer dismisses the employee, or injures the employee in his or her employment, or alters the position of the employee to the employee’s prejudice (s 342(1) Item 1). Threatening to take such action also constitutes adverse action (s 342(2)).
  • Ms Jones’ workplace right was in respect of either:
  • her role or responsibility in negotiating the Enterprise Agreement on behalf of QTAC: s 341(1)(a); or
  • her participation in the process of making an Enterprise Agreement: s 341(1)(b).
  • In relation to Ms Jones’ participation in the process of making an Enterprise Agreement:
  • Ms Jones had a role as a “bargaining representative” of QTAC for the purposes of the Enterprise Agreement negotiations;
  • so far as relevant s 176 of the FW Act provides that:

“a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement. (s 176(1)(d))”

  • in a letter to the ASU dated 18 July 2009, Mr McAndrew said that the QTAC Board had confirmed that Ms Jones would continue to be QTAC’s “bargaining representative”.
  • QTAC has taken, and is proposing to take, adverse action against Ms Jones because she has exercised a workplace right, in that:
  • adverse action has already been taken by QTAC in relation to the commissioning and conduct of the Carol Watson report, and informing QTAC staff of the report;
  • QTAC proposes to take adverse action in that it threatens to terminate or otherwise discipline Ms Jones because of the view QTAC takes of the Carol Watson report and the various complaints.”

The Judge did not find there was a prima facie breach of the contract of employment. However, in view of the serious question concerning the breach of the Fair Work Act, His Honour found there was a serious question to be tried and that damages would not be an adequate remedy. The Judge said (at [49]):

“Discipline of a Chief Executive Officer for allegedly creating a culture of fear or terror in the workplace, be such discipline in the form of termination of employment or otherwise, is a very serious matter. In my view, it is likely that such a course of conduct would have a detrimental effect on Ms Jones’ reputation and impose a stigma which could adversely affect her future career prospects …”

His Honour, on balance, favoured the making of the interlocutory injunction sought (at [52]) and that the difficulties that might cause QTAC in the granting of such an injunction could be ameliorated by the accelerated timetable for the hearing of the substantive issues in the proceedings (at [58]).

This case is further evidence of the various uses which some of the provisions of the Fair Work Act will be able to reveal as useful adjuncts to employment disputes even for people who are not otherwise covered by industrial instruments.


Adverse action shock

Not long after the introduction of the Keating Government's 1993 Industrial Relations Reform legislation, the then Minister, Laurie Brereton was forced into an embarrassing back down. The new unfair dismissal laws designed to protect ordinary workers from capricious dismissal was being used by senior management employees to claim hundreds of thousands of dollars in compensation. The government hastily amended the legislation to prevent the majority of employees who were considered high income earners from making a claim. An arbitrary remuneration limit of $60,000 per annum was introduced.

In what shapes up as an important test case for the legislation, a Chief Executive Officer has won a Federal Court injunction to prevent her employer terminating her employment. The CEO is arguing that the employer was proposing to terminate her employment because she exercised a "workplace right" and because she was participating in the process of making an enterprise agreement.

For many years industrial legislation has protected employees from prejudice in their employment because of their participation in union related activities or because they have insisted on their rights to minimum employment conditions. What makes the case of Jones v Queensland Tertiary Admissions Centre Ltd (QTAC) different, is that the employee has claimed that by representing her employer - not, one will note, other employees - in enterprise bargaining negotiations, she is entitled to the protection of the Act. The timing of events which led to the claim are perhaps a little unusual, but even if Ms Jones ultimately does not succeed in her action, the scope for the "adverse action" provisions of the Fair Work Act to become a heavy yoke for employers is slowly being exposed.

As CEO, Ms Jones represented QTAC in negotiations with the Australian Services Union for a new enterprise agreement. QTAC's initial attempt to put an agreement to an employee vote was thwarted by the ASU obtaining a good faith bargaining order from Fair Work Australia. During the course of subsequent negotiations, the ASU and individual employees made complaints about Ms Jones conduct, which amounted to allegations of bullying and harassment.

QTAC initiated an investigation into the CEO's conduct, as a result of which a report was produced. The findings of the report were adverse to the CEO and QTAC indicated to her that it was considering terminating her employment.

Enter Julia Gillard's "adverse action" laws. Ms Jones successfully argued that there was a serious question for the court to consider as to whether her employment was under threat because of her participation in the enterprise bargaining negotiations. QTAC argued it was acting in good faith in order to prevent further instances of bullying and harassment of the type alleged against Ms Jones, consistently with its obligations under Queensland's occupational health and safety laws.

By identifying the "timing of the allegations against Ms Jones... and the identity of the complainants, including the ASU" as factors weighing in favour of granting the injunction, the Court has left open a finding that the complaints were in fact industrially motivated. The Court recognised in its decision that if Ms Jones is ultimately successful in arguing that, as CEO, she had "workplace rights" as a consequence of the enterprise bargaining process, such a finding could have an impact on all CEO's or executives who have those responsibilities. The court has yet to make its final determination, which will occur when the case goes to trial in early 2010 and there is no suggestion that the outcome of the enterprise bargaining negotiations were themselves negative for QTAC.

Quite aside from its impact in this case, the establishment of a "workplace right" for executives simply because they are involved in enterprise bargaining will potentially hobble the ability of employers to make business decisions about executives who behave inappropriately or who handle negotiations poorly.

Ironically, the consequences of an executive's conduct might include an adverse action claim against the employer by unions or employees. Given the gusto of attacks on the apparent lack of executive accountability to shareholders, you have to wonder if that was really what was intended by the Rudd Government in making the Fair Work Act law. At some point, the Government will have to re-examine the scope of these laws. Hopefully before creative lawyers have their way with Fair Work.'

06 December 2009

Australian Teachers trapped by Bullying Epidemic from other Teachers!

VICTORIA'S teachers are in the middle of a bullying epidemic in our schools, official research has revealed.

A WorkSafe study has found occupational bullying is on the rise, with one in five workers suffering some form of intimidation or abuse.

And those in the education and training sector are the worst offenders, with 39 per cent of staff reporting they have been repeatedly bullied - double the state average.

Parents' groups say the bullying culture among teachers is contributing to the problem among children - because students who see bullying in role models mimic that behaviour.

The Sunday Herald Sun has also found:
  • TEACHERS encourage parents to complain about their enemies to school principals.
  • STAFF routinely complain about each other's teaching ability to year leaders, principals and even education authorities.
  • THEY try to palm off difficult students on unpopular colleagues.

Additional data in the report reveal there has been a 30 per cent rise in WorkCover stress claims by teachers since 2006, with at least 250 teachers seeking counselling for bullying, heavy workloads and the stress of the Black Saturday bushfires in the six months before August.

Parents Victoria spokeswoman Elaine Crowle said bullying among teachers could have serious ramifications for children.

"If they see (bullying) happening there, they will mimic (that) in their own relationships," Ms Crowle said.

"The publicity is always around the bullying in the playground, but we are aware there is also bullying in the classroom and the staffroom.

"There is bullying between teachers and teachers, teachers and principals and principals and parents."

Mary Bluett, president of the Australian Education Union Victorian branch, said she was not surprised teachers topped the table for workplace bullying.

"Schools are stressful places. People under stress are often short with their colleagues and that can be perceived as bullying," Ms Bluett said.

"Bullying is a problem with some principals."

WorkSafe Victoria Tools for Bullying


05 December 2009

Review sparks Centacare management change after Workplace Bullying Complaints

Centacare says it will overhaul management processes at its Fraser Coast offices after an independent review found the management style was inadequate for the growing organisation.

The two-month investigation was launched when staff at the Maryborough and Hervey Bay offices complained of workplace bullying, a management conflict of interest and religious discrimination directed towards a female worker wearing a cross.

The executive director of Centacare Brisbane, Peter Selwood, says the review found measures to manage workplace conflicts were poorly communicated and there was evidence of inappropriate workplace behaviour.

He says while there were different accounts of a woman being asked to remove her cross, she has accepted an apology from Centacare management.

He says he is unhappy that what has happened at the offices has tarnished the organisation's reputation as a Christian mission in the community.

The former deputy director-general of the Department of Families, Myolene Carrick, has been appointed to oversee the operations.


Carrick takes over Centacare

ONE OF the state’s most respected social administrators has been appointed as the acting director of Centacare Fraser Coast in a major management overhaul.
Centacare - Peter Selwood and Myolene Carrick.

ONE OF the state’s most respected social administrators and a former deputy director-general of the Department of Families has been appointed as the acting director of Centacare Fraser Coast in a major management overhaul.

Myolene Carrick’s appointment yesterday comes in the wake of a two-month inquiry by independent Brisbane-based investigator John Scoble, after current and former employees and clients complained to the Chronicle over management style and conflicts of interest within the organisation.

The inquiry, during which 57 people were interviewed, was commissioned by the Catholic archdiocese in Brisbane.

“Today was my first day. It was reflective. I’m very pleased to work with the local community and to continue to grow the presence of Centacare here,” Ms Carrick said in Hervey Bay yesterday.

Ms Carrick, who will also continue in her Brisbane-based role of Centacare’s childcare services director, replaces Jo Chorny as the head of Centacare here.

But Ms Chorny will remain in her role of service manager.

The investigation found that measures put in place to manage potential conflicts of interest were “poorly communicated”.

There was also evidence of inappropriate workplace behaviour and Jenny Bill, who was ordered to remove crosses from her neck while working at the centre as a counsellor, had been apologised to personally by Peter Selwood, Centacare executive director.

“The Centacare Council and I wish to place on record that we are most unhappy with what has occurred at Centacare Fraser Coast,” Mr Selwood said.

“The matters raised undermine public confidence in our service, negatively impact staff morale and tarnish our reputation.

“We have heard the messages of the past few months loud and clear and I am confident that through a new leadership style we will begin to move forward in a positive new direction.”

Maryborough parish’s Father Paul Kelly yesterday said the appointment of Ms Carrick to oversee the new management processes was “heartening and excellent news”.

02 December 2009

RESEARCH - Inside the Brain of a Bully

What goes on inside the brain of a bully?
Researchers from the University of Chicago used brain scan technology to find out. They wanted to learn whether the brain of an aggressive youth responds differently to violence than the brain of someone who is not a bully. In a chilling finding, the researchers found aggressive youths appear to enjoy inflicting pain on others.
In the study, the researchers compared eight 16- to 18-year-old boys who were unusually aggressive to a control group of adolescent boys with no unusual signs of aggression. The aggressive boys had been given a diagnosis of aggressive conduct disorder and had been in trouble for starting fights, using a weapon and stealing from their victims.

The youths were tested with functional magnetic resonance imaging to see how their brains reacted while watching video clips. The clips showed people in pain as a result of accidents — such as when a heavy bowl dropped on their hands. They also showed intentional acts, like stepping on another person’s foot.

When the aggressive youths watched people intentionally inflicting pain on another, the scan showed a response in the part of the brain associated with reward and pleasure. The youths who were not aggressive didn’t show the same brain response.

The study, published in the current issue of the journal Biological Psychology, suggests that the brain’s natural impulse for empathy may be disrupted in the brain of a bully, leading to increased aggression.

“This is the first time that f.M.R.I. scans have been used to study situations that could otherwise provoke empathy,” said Jean Decety, professor of psychology and psychiatry at the University of Chicago, in a press release. “This work will help us better understand ways to work with juveniles inclined to aggression and violence.”

While the study is small, the striking differences shown in the brain scans suggests that bullies may have major differences in how their brains process information compared to non-bullies. Dr. Decety said the aggressive adolescents showed a strong activation of the amygdala and ventral striatum, areas of the brain that respond to feeling rewarded. The finding “suggested that they enjoyed watching pain,” he said. Notably, the control group of youths who weren’t prone to aggressive behavior showed a response in the medial prefrontal cortex and the temporoparietal junction, areas of the brain involved in self regulation.

01 December 2009

NEWS - Union calls off disability workers' strike over Workplace Bullying

Follow Up from yesterday ...

Strike action at the Disability Service Queensland office in Maryborough has been averted.

Members of the Australian Workers Union (AWU) were due to go on strike for 24 hours last night to protest against a State Government decision to drop an investigation into allegations of workplace bullying.

But a Queensland Industrial Relations Commission hearing yesterday recommended the union drop the action and the commissioner will travel to Maryborough to hold a dispute conference between the parties.

Keith Ballin from the AWU says the investigation should never have been dropped.

"I'm quietly confident that I hope it does show the situation for what it really is," he said.

"How can you have 102 separate issues - on the balance of probability - with no question to answer?

"That to me is a claytons and I think it is a buck pass from the department of disability service when that does happen."

In a statement, the director-general of Disability Service Queensland, Linda Apelt, says the department is working closely with staff and the unions to resolve the concerns.