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Changes to workplace arrangements

The recent passing of the Fair Work Amendment Act 2013 brings about significant changes requiring the attention of school administrators, some of which have already taken effect.


The most significant element of the amendment package is the introduction of anti-bullying provisions. From 1 January 2014, workers (including employees and contractors) may apply to the Fair Work Commission where they reasonably believe that they have been bullied at work. The Commission must begin to process the application within 14 days of it being made and can make any order it considers appropriate, except for reinstatement or monetary compensation.

A worker is bullied at work if while working at a constitutionally-covered business (this includes most but not all independent schools) they are the recipient of repeated unreasonable behaviour that creates a risk to health and safety. However, a worker is not bullied under the new legislation if they are the recipient of reasonable management action carried out in a reasonable manner. If facing an application from a worker, the employer will have to incur the expense of arguing as a defence that it engaged in reasonable management action carried out in a reasonable matter.

Failure by an employer to adhere to an order by the Commission to stop bullying will expose it to fines of up to $51,000.

Until now, workers have sought protection from workplace bullying through anti-discrimination and work health and safety laws. These changes provide an alternative and potentially more flexible remedy.

Flexible working arrangements

The right of an employee to request to change their working arrangements has been expanded under the Fair Work Act. From 1 July 2013, employees having the right to request flexible working arrangements include parents or carers of school age children or younger, those with a disability, those aged over 55, those experiencing violence from a family member and a carer of an immediate family member who is experiencing violence from a family member.

An employer may only refuse a request on “reasonable business grounds” which the Act now specifies as including when the requested working arrangements would be too costly for the employer, there would be a significant loss to productivity and the new arrangements would be of significant detriment to customer service. The Act also brings changes to parental and special maternity leave.

When investigating, don’t delay!

“To allow a very serious matter to go on for over two years and then terminate the applicant, in my determination, is harsh, unjust and unreasonable.” So said Commissioner Redmond of the Australian Industrial Relations Commission in an application by a customs officer following a protracted and flawed investigation into his conduct. In addition to the delay, the officer was denied the right to make final submissions to the decision maker. As the Commissioner said: “I consider it incredible that the person who ultimately made the decision to terminate the applicant failed to give him a final say when he requested it.”

Quite often these days, schools are being called upon to investigate alleged misconduct by employees. It is extremely important that such investigations are carried out fairly. The consequences of adverse findings for teachers can be very serious, particularly when child protection issues are involved. Unfortunately, it is all too easy for school executives, even those who have undertaken some basic training in investigations, to overlook significant steps required to ensure there is procedural fairness.

Emil Ford lawyers are experienced in conducting investigations and in ensuring that investigations carried out by school staff are done properly.

High Court upholds Work Choices

You are no doubt all aware that the High Court has, by a majority of 5 - 2, decided that the Federal Government’s Work Choices legislation is valid. You also know that the legislation catches “constitutional corporations”. In our opinion, most independent schools are constitutional corporations because they are trading corporations. However, there are a few commentators who cast some doubt upon this. Did the High Court have anything to say on this matter?

The majority judgment noted that all the States’ assumed that there are constitutional corporations which would be affected by the Work Choices legislation. Accordingly, the five judges said:

There was, therefore, no occasion to debate in argument, and there is no occasion now to consider, what kinds of corporation fall within the constitutional expression “trading or financial corporations formed within the limits of the Commonwealth”. Any debate about those questions must await a case in which they properly arise.

Justice Kirby, one of the two dissenting judges, noted that the States, correctly in his view, pointed to the potential of the Commonwealth’s argument, if upheld, radically to reduce the application of State laws in many fields that have long been the subject of the State’s principal governmental activities. Importantly, he then said:

Such fields include education, where universities, tertiary colleges and a lately expanding cohort of private schools and colleges are already, or may easily become, incorporated.
Clearly, Justice Kirby is of the view that private schools, if incorporated, are trading corporations and therefore constitutional corporations.

The other dissenting judge, Justice Callinan, took a similar view. He too was concerned about the opportunities the majority view gave to the Federal Government to extend its control in numerous areas. He noted that the potential reach of the corporations power is enormous. He observed that corporations and their activities pervaded the life of the community to a very large extent. Although he did not mention schools as explicitly as Justice Kirby did, we believe it is fair to imply that he would also be of the view that private schools, if incorporated, were trading corporations and therefore constitutional corporations.

Men behaving badly

A male employee who became intoxicated at a non-work gathering touched two female employees and made sexual comments to one of them. He was later dismissed from his employment for breaching the employer’s Code of Conduct. He brought a case of unfair dismissal to the Queensland Industrial Relations Commission where he was successful and reinstatement was ordered. The conduct was considered not quite serious enough to be sexual harassment, the women involved were not offended and were prepared to keep working with him, the man was intoxicated and afterwards extremely contrite, the conduct occurred out of work and did not reflect so adversely on the employer to necessitate its intervention.

In the NSW Industrial Relations Commission, another man’s dismissal was held not to be unfair. He made abusive and intimidatory remarks towards female employees, including saying in a meeting to discuss aggression by male employees that the women there were “dobbers” and “the women should be at home looking after the kids”. He had previously been warned for abusive language and threatening violence, and he had not shown any contrition nor accepted that his behaviour was inappropriate. The employer’s decision to dismiss him was upheld.

If your school is investigating similar behaviour by staff and contemplating dismissal, it would be prudent to before taking action.

Pornography & union activity –
what constitutes lawful grounds for termination of employment?

A US case in 2011 considered a teacher who had been dismissed for accessing pornography during work hours. The teacher claimed that his dismissal was actually retaliation for his union activity as he had been involved in pay and other working condition disputes with the school authority. The Court found that the school had terminated his employment for a legitimate and non-discriminatory reason - breach of the school’s computer usage policy. How would this case be decided in Australia?

A decision handed down this year concerned a senior public servant who had accessed pornographic images on a department laptop in the ‘comfort’ of his own home. The relevant government department had a policy that forbad accessing pornography. The Court held that an employer has a legitimate interest in ensuring that its equipment does not come into contact with pornography outside work hours as an employer would not want the pornography to resurface during work hours. The public servant was found to have been dismissed fairly even though the pornography had been accessed at home.

In a similar way, schools have a legitimate interest in ensuring that their employees do not access pornography at home using their work computers due to the significant risk of potential exposure to students at a later time. It is essential that schools have a policy which outlines employees’ obligations in relation to the use of computers and the internet. Where such a document exists and it has been acknowledged, accessing pornography should be sufficient grounds for dismissal, even if it is accessed outside of work hours.

In relation to the dismissal of employees for union activity, employment legislation states that an employer must not dismiss an employee for organising, promoting or encouraging activities that are part of a union. The sole ground for dismissing a teacher cannot be his or her participation in a union. In a recent Federal Court case, the Court held that an employee who used his work email to disseminate material related to union activity was protected by this employment legislation. The teacher was employed at a TAFE and had used his work email to discourage fellow teachers from participating in an audit that the employer was about to undertake. The Court held such industrial activity could not form a lawful ground for dismissal.

Schools considering terminating an employee need to consider carefully the grounds upon which the termination will be based!

On-line misbehaviour

In the USA:

A teacher in Pennsylvania has been suspended over blog postings she made which were critical of her students.

When a parent read the teacher’s blog postings and saw comments such as “frightfully dim”, “Rat-like”, “Am concerned your kid is going to open fire on the school”, “I hate your kid”, and “Seems smarter than she actually is” on her blog, she called school officials to complain.

And in Australia:

Negative comments made on Facebook about her employer have, in part, led to the dismissal of a hairdresser in Victoria.

The Fair Work Australia Commissioner said that “Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.”

Luckily, for this employee, she did not name the salon where she worked and the Commissioner did not consider that the comments were such that they would adversely affect the employer’s salon specifically.

But a warning for all employee’s no matter what their industry. The Commissioner also said
A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.

Employers set the standard for appropriate email content

These days, internet usage and email access are practically ubiquitous in the workplace. Accordingly, it is increasingly common for employers, including schools, to provide their employees with an electronic communication policy. These documents outline what constitutes acceptable use of the Internet and email facilities provided at work. They will typically prohibit employees from accessing or passing on material that depicts violence or cruelty, is sexually explicit, discriminatory or otherwise offensive.
In a recent decision, Fair Work Australia (FWA) has affirmed that it is an employer’s sole right to determine what material is considered inappropriate within the terms of the workplace’s policy. The decision concerned Mr Spargo, an employee of QR Network. He was ultimately dismissed because he had received and forwarded on a number of emails that breached QR’s electronic communication policy.
QR initially sent Mr Spargo a ‘show cause’ letter asking him to explain why he should not be dismissed. However, even after considering his response, the relevant officers of QR felt that the large number of emails forwarded and the degree to which they breached the policy meant that they still had to terminate his employment.

Mr Spargo did not think that the content of the emails in question was inappropriate. In appealing to FWA against his dismissal, he argued that the words of the policy were vague, that no-one at QR really understood exactly what was and was not acceptable, and that QR’s interpretation of the policy was too conservative.

However, FWA disagreed on all counts. It was not prepared to give an objective meaning to the words of the policy, but rather said that as long as the standard set in the policy was ‘lawful, clear and unambiguous’, employers were well within their rights to subjectively decide what fell within that standard. Since QR had met this standard, FWA upheld its decision to dismiss Mr Spargo.

This decision demonstrates the importance of ensuring that staff fully understand the scope of their obligations in relation to acceptable use of email and the Internet. To avoid disputes like that between QR and Mr Spargo, schools should clearly communicate their expectations in this regard to their employees.

When it comes to managing employees, what is reasonable?

Most schools are aware that the law entitles employees to obtain workers’ compensation for physical or psychological injuries sustained in the course of employment, provided of course that they satisfy certain requirements. However, an employer who can show the court that it took ‘reasonable management action in a reasonable way’ will not be liable to pay compensation to workers who are psychologically injured as a result of that action.

The Qld Industrial Court has shed some light on what does and does not constitute ‘reasonable management action’. Ms P worked for an Australian School. She sought compensation for a psychological disorder that her doctor said was caused by bullying and harassment by Mr B, whom she had had difficulties getting on with for a long time. The unrest between them culminated in a loud argument in front of other employees and students, and Mr B had to be restrained by another colleague. The school subsequently engaged a third party consultant to attempt to resolve the issue, requested that Mr B take leave immediately following the incident, and ultimately terminated both his and Ms P’s employment.

When Ms P’s case was first heard by the Industrial Relations Commission, it found that the school’s actions were reasonable and that it had acted quickly following the dispute. Therefore, it was not required to pay compensation. However, Ms P appealed and the Industrial Court reversed the IRC decision, ordering the school to compensate her. This was mainly because there was evidence that the school had originally told her it had to dismiss her because of financial difficulties, but later said in her formal letter of dismissal that it was because of the dispute with Mr B. Additionally, other teachers at the School gave evidence that they were told of Ms P’s impending dismissal before she was.

The ‘mixed signals’ that Ms P received as to why she was being dismissed, together with the school’s unprofessional conduct in informing others of her dismissal, seem to have been the school’s downfall. Accordingly, schools should strive to resolve disputes swiftly, deal fairly with their employees and act professionally at all times.

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