With the recent arrival of the Fair Work Commission’s new workplace bullying jurisdiction – in addition to workplace health and safety legislation, anti-discrimination legislation and adverse action laws under the Fair Work Act – employees have an abundance of choices for suing their employer over perceived grievances.
As we have recently highlighted, the new workplace bullying laws in the Fair Work Act do not provide for compensation.
Employers should be mindful. however, that aggrieved bullying victims are not prevented from alleging workplace bullying as part of a different workplace claim – if the ‘hat fits’.
Therefore, some aggrieved workplace bullying victims may choose to ‘jurisdiction hop’ because of the attraction of monetary compensation rather than trying to secure a workplace bullying stop order under the new laws.
For employers unaware of the options available to employees, ignoring or condoning workplace bullying potentially could cost hundreds of thousands of dollars.
As this recent Federal Court decision[1] highlights, bullying victims do have avenues of redress outside of the new jurisdiction.
Background
The employee in question, Mrs Kassis, had been employed by the Republic of Lebanon in the Sydney consulate from January 2005 to February 2011, when she was dismissed.
During the course of her employment, the employee claimed to have been subject to bullying, harassment and intimidation on the basis of her sex and marital status, as well as ongoing issues with her pay.
The Behaviour
Following, firstly, an incident at a private dinner with the Consul in June 2008 and secondly, her marriage in April 2010, the employee experienced increased negative attention including:
- Inappropriate compliments and comments
- Discrimination between her and other employees
- Demotion
- Increased supervision through CCTV
- Unreasonable work requests (e.g. transfer to an accounting role for which she had no training)
- Unreasonable refusal of leave entitlements
- Unreasonable requests for proof of illness (e.g. being asked to provide receipts of medication purchases)
The employee’s mistreatment led to increased stress and illness including anxiety and depression.
On more than one occasion, the employee was told that if she was not happy with her employer’s decisions she should resign.
In August 2010, the employee protested to a senior member of the Consulate in Lebanon about her concerns over the situation at the Sydney office.
The employee’s protestations were unsuccessful.
The Dismissal
Finally in February 2011, after another confrontation with the Consul in Sydney, the employee was advised by medical professionals that she should not continue in her role.
When delivering this information to the Consul, the employee was instead dismissed.
The Claim
The employee brought an action against her employer in the Federal Court with multiple allegations.
The primary allegation was that the employer took adverse action against her for exercising a workplace right – namely complaining about the years of bullying, harassment and intimidation.
The Decision
The Federal Court was scathing in its judgment, stating that the deliberate actions of her employer displayed “complete contempt of the employment standards set by Australian law”.
The Court recognised that senior management condoned the mistreatment through inaction.
It was found that the treatment of the employee following the dinner of 2008 and then her marriage in 2010 amounted to workplace bullying and harassment and constituted discrimination.
In these circumstances, the workplace bullying and harassment suffered by the employee was a causal factor in her subsequent psychiatric illness.
The mistreatment of the employee was found to have satisfied the requirements of adverse action under the Fair Work Act as the behaviour amounted to discrimination and directly led to her dismissal.
The cumulative effect of the employer’s multiple workplace breaches was an order to pay Mrs Kassis more than $500,000 for injury, unpaid wages and loss of future earnings.
Lessons for Employers
The new workplace bullying laws do not preclude aggrieved employees from bringing alternative workplace claims in which bullying is alleged.
The profiled case demonstrates that in certain circumstances, victims of bullying can bring litigation over workplace bullying in a forum other than the new workplace bullying jurisdiction.
Employers must now recognise that aggrieved bullying victims may elect to bring what is in essence a de-facto workplace bullying claim because of the desire for monetary compensation.
Thus it is imperative that employers treat seriously and investigate any report of workplace bullying.
Those who fail to take workplace bullying seriously, or stand by and condone such misdemeanours, should expect costly repercussions.
Are your employees properly trained about bullying and harassment?
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[1] Kassis v Republic of Lebanon [2014] FCCA 155 (14 February 2014)
