Employment law is a risky business. Many of the contemporary issues don’t fit neatly within a piece of legislation, and many of the issues expose employers to multiple breaches. Jacqueline Burns speaks with three of the country’s most distinguished employment lawyers about what they consider to be hot topics in HR
Flexibility for family responsibility
According to Steve Bennett, an employment law partner with Blake Dawson Waldron, the single most difficult area of compliance for HR managers at the present time is family responsibility.
The definition of ‘family responsibility’ will vary state-by-state but is broadly a person’s right to care for or support a dependant child or any other immediate family member who’s in need of care or support.
Just as employers can’t treat people less favourably on the basis of their gender, religion or sexual preferences, neither can they discriminate against a person because of their family obligations.
The most recent cases have dealt with women who, upon returning from maternity leave, sought flexible working arrangements – to work from home or reduced hours – so they could care for their newborn.
In both cases, the question under consideration was whether the request was unreasonable.
In the first decision (Mayer v ANSTO), the requirement to work full-time was found to be unreasonable as suitable part-time work was available. The Court held that just because an employee has been engaged under a full-time contract does not provide the employer with an excuse, in itself, for denying the request.
In the second case (Kelly v TPG Internet Pty Ltd), the Court found the employer was permitted to refuse the request to work part-time, accepting that all management positions were full-time. Importantly, in the employer’s favour was that it did not have a history of accommodating flexible working arrangements.
Though the current cases have dealt with post maternity leave scenarios, family responsibility has the potential to explode as an issue as the need to care for our aging population, with its longer life expectancy, places more demand on workers. Additionally, the X and Y generation believe flexibility is their right so are more likely to challenge its application.
For HR practitioners, the most important point is that they must give reasonable and genuine consideration to these requests – even if it is for something that was not in the employment relationship to begin with. As important, HR practitioners are compelled to document the process by which they have arrived at their decision.
“You need to be able to demonstrate how you came to the conclusion that you could not accommodate the request,” says Bennett. “That includes being able to show your intricate workings.”
HR practitioners can take a number of steps in this regard. Ascertain the actual work requirements of each position and ensure they are accurately reflected in the relevant contract and position description. Also determine whether the work requirements are objectively reasonable.
Carefully and genuinely assess any proposal received seeking alternative work arrangements – having regard to the actual work requirements. Additionally, ensure that this process of analysis is documented in a way that will stand up to scrutiny by a court or tribunal.
White collar bullies
Bullying is something most people associate with the playground or with macho, testosterone-rich blue collar environments. Yet, white collar workplace bullying is also on the rise.
In an office environment, bullying is more likely to be psychologically or emotionally damaging than physically harmful. Examples include verbal or emotional abuse, public humiliation, exclusionary conduct, ambushing and baiting.
Joe Catanzariti, a workplace relations partner with Clayton Utz, explains that losing your cool doesn’t necessarily constitute bullying behaviour. Neither does the behaviour have to be repeated. It has to be taken in context.
For example, in one case some documents were interfered with so that profanities were inserted throughout the text without the author realising. When the papers were sent to the client, everyone thought it was a big joke. In fact, it was inappropriate behaviour and a form of bullying.
The difficulty for HR practitioners is that current workplace legislation focuses on specific, defined forms of harassment and discrimination. There’s no accepted definition of bullying within legislation or case law. Neither has any State or Territory introduced legislation specifically to address the problem.
Most commonly, employers will be found to have breached occupational health and safety legislation by failing to provide a safe system of work or to properly supervise its workers. However, there’s also the potential for employers to be held accountable for breaches under common law, criminal law, anti-discrimination legislation and workers compensation legislation.
Importantly, it’s not just the victim of bullying who suffers. Workplace bullying can negatively impact all staff and result in low morale and high turnover.
As Catanzariti explains, individuals today are more aware of their rights and are more willing to stand up for themselves.
“They’ll say, ‘Counsel me if I’m not doing my job properly, but none of this bullying or berating.’ It’s not coaching or mentoring; it’s absolute abuse,” he explains.
On the downside, the public also have a sophisticated understanding of anti-discrimination laws. They know not to openly display racist, homophobic or sexist behaviour so are clever about disguising it.
“Bullying is often discrimination in disguise,” says Catanzariti. “They take out the racial or sexual element of their conduct while treating their colleagues invidiously nonetheless.”
In the absence of specific legislation, HR practitioners must look to best practice solutions to the problem of workplace bullying. Catanzariti recommends companies start out by clearly describing the sort of organisation they want to be and the type of culture they want to foster.
Minimum standards of behaviour should be prescribed in a code of conduct or HR policy. Importantly, having documented what is and is not accepted, HR practitioners need to ensure all staff understand and policy and the penalties for non-compliance.
Executives fight to be heard
In May 2004 a decision was handed down in the Victorian Court of Appeal (Intico (Vic) Pty Ltd & Ors) which affirms that in a summary dismissal circumstance an executive under a contract has no right to be heard.
The executive, the general manager of a company, was summarily dismissed for sexual harassment. He sued his employer for breach of contract, claiming he had been improperly dismissed by not being given an opportunity to be heard.
Federal and State statutory schemes provide for procedural fairness: an employer cannot dismiss an employee without giving them an opportunity to be heard and going through a proper process. However, those jurisdictions are restricted to people who earn $85,400 or less, or who are covered by an Award.
Most executives will not satisfy either of those conditions and therefore are not afforded the same rights. Executives only have the right to sue for breach of contract.
At first hearing, the trial judge determined the summary dismissal couldn’t be upheld as the executive had been denied the opportunity of answering the charge. However, the Court of Appeal upheld the employer was under no obligation to allow the executive to answer the charge.
According to Gary Rothville, an employment and industrial relations partner with Arnold Bloch Leibler, this case has contemporary significance because there is a greater expectation amongst all employees that they will be fairly treated. Younger generations, in particular, have higher expectations of being treated fairly as an extension of broader social justice and individual rights.
“They will not simply accept a 19th century notion of master and servant,” Rothville says. “Why should you be treated less fairly because of an arbitrary or statutory salary limit? If you’re $10 over or $10 under, it makes a significant difference in terms of whether you’re treated fairly or not.”
Executives in these situations cannot be reinstated but can be awarded damages, measured either by the period of notice they would’ve been entitled to under their contract or, if there was no notice provision, what might have been reasonable notice in the circumstances.
However, simply because the law does not require an employer to give a right of reply or right to be heard, does not mean it is not good practice and appropriate to do so. This is another example of internal best practice.
“As a matter of professional courtesy and of good practice, it would be a rare circumstance where a right of response ought not be afforded,” says Rothville. “It sets a standard of conduct within the company, sends a message to employees about how they will be treated by the company, and in the context of a code of conduct it’s a matter of treating people how you yourself would expect to be treated.”
There is no implied term of fairness in common law contracts. To be guaranteed the right to be heard, executives must insert a provision in their contract that says even in circumstances where the employer believes a summary dismissal to be justified, they want the opportunity to be heard before the right is exercised. It’s a basic protection.
A final word of warning
Summary dismissal also reverses the burden of proof, should the matter go to court. Therefore, if an executive (as in this case) sued for breach of contract, the onus is on the employer to prove that the summary dismissal was justified. As Rothville points out, that can be done even on grounds that were not known or disclosed at the time, but nevertheless the employer has to prove it.
“The employer would have to justify what it did and that might be difficult if it hasn’t given the person an opportunity to be heard. Common sense would frequently dictate checking a person’s allegations,” he concludes.
