The Victorian Supreme Court recently issued a stunning decision awarding an employee over $600,000 comprising $210,000 for pain and suffering and the balance for lost past and future income, despite the employee having a significant pre-existing psychiatric illness and a finding that no bullying had occurred. Continue Reading Damages in bullying claims – the stakes are rising even higher
Ronda “Rowdy” Rousey was at the top of her field, training hard and winning harder. Her success had built her brand. So much so that she diversified into acting with parts in two big budget, big publicity movies. Then it happened. Her reputation did not match her performance. Immediately the questions started – would she come back?
As the saying goes ‘the bigger you are the harder you fall’.
The shock and self-doubt experienced by Rousey and the public commentary about her performance and her future are also experienced by organisations and industries following a significant or catastrophic workplace incident.
There is the shock. That a colleague, friend or someone on their watch has suffered serious injury, or lost their life. There are questions about why the systems and the commitment to safety were not enough to prevent the occurrence. Your performance has not met your own expectations and the expectations of others.
Then comes the uncertainty about what comes next. Uncertainty about what an investigation will reveal about the failure, the associated consequences and the future cost of prevention. You will question if you are going in the right direction, including whether your systems and processes are adequate. The safety solution is not the only area of uncertainty for business – it extends to how to re-build trust, how to re-build brand and how to re-build performance. In short, how will you get back in the ring?
Like Rousey the business has to persevere. It has to assess what happened, what needs to be reinforced, what needs to be improved and what needs to change. Was there over training? Or undertraining? The wrong preparation? The wrong support team? Is there new technology or new techniques that can assist? Are there improvements that can be made to the system of work? Do you need a new coach? Or a new approach? In reality it is probably a combination of all these things (and more) for the business to get “back in the ring”.
Then the hard work needs to start again. Not from the beginning, but building on what was implemented before the incident and incorporating the lessons learnt. We often find that organisations that have experienced a significant or catastrophic incident take a different approach to risk control than those that haven’t. They keep a healthy level of vigilance on the performance of their critical controls and they drive the commitment to safety through all levels of their business. They use a variety of levers to engage and embed an incident prevention mindset – they are not afraid to bring in outside expertise to give them the edge to get back on top.
And like Rousey, it is important to take your time, consider your options and develop the right strategy to get you back in the ring.
The Aurizon decision handed down on 22 April 2015 and endorsed by a Full Federal Court on 3 September 2015 has created a viable option for employers needing to move away from legacy industrial arrangements that are bad for business.
The Aurizon decision was a watershed ruling because it swept away a longstanding presumption that agreements should not be terminated whilst bargaining negotiations for a new agreement are occurring (see our earlier blogs about this decision here). The mere fact the option exists has given employers more leverage in bargaining, as well as providing an opportunity to change arrangements other than through a union-resisted employee ballot for a new agreement.
Figures released by the Department of Education last week show that applications to terminate agreements have almost doubled. The Fair Work Commission terminated 416 agreements in Q1 – Q3 2016, which represents an increase from 275 in 2015 and 156 in 2014.
Of course, not every agreement is a good candidate for termination – a lot depends on the context, the reasons for the application, what has occurred during the bargaining process, and a list of other factors. An employer making an application to the FWC without the consent of employees covered will need to show that termination of the agreement is not contrary to the public interest, and is appropriate in all of the circumstances.
The union response to these recent developments has been multi-layered, with the following key strategies observed:
- Deal with it “on the ground” using traditional IR tactics and weapons (including ramping up protected action and/or taking covert unprotected industrial action)
- Go after the “brand” with media campaigns and the like
- Lobby for changes to the legislation – unlikely at present
- Look for suitable test cases to run to try to overturn Aurizon, and / or
- Try to agree restrictions in the agreements currently being negotiated to the effect that if the employer applies to terminate the agreement in the future, specified terms and conditions considered particularly important will be maintained by way of undertaking.
This fifth strategy is itself a result of a recent development. Late last month, VP Hatcher stayed a decision of DP Clancy to terminate the Loy Yang Power Enterprise Agreement 2012. The stay was issued on the grounds that termination was ordered despite a specific clause in the EA requiring the Company to maintain a suite of conditions until a replacement agreement was negotiated. While AGL gave an undertaking it would maintain certain conditions, the undertaking was narrower than the list of conditions specified in the clause.
The appeal will be heard on 21 February 2017. The appeal will look closely at the effect of this clause and particularly whether AGL moving away from it impacts on the “appropriateness” of terminating the agreement. This part of the test requires the FWC to consider a range of discretionary factors.
The impact of the AGL stay has been immediate. Across our partnership, we have seen unions ask for a similar protective clause in over half a dozen separate bargaining negotiations in the past week. Major employers will increasingly need to deal with this kind of claim and the public campaigning that results if there is a rejection of the claim. Of interest over the next month will be how far the AGL appeal goes – and whether it has ramifications beyond the specific facts of that case.
In the world of anti-discrimination law awards of money against employers for psychiatric injury or illness caused by sexual harassment by one of their employees have been rare and low, typically in the range of $12,000 to $20,000. Similarly, the anti-bullying jurisdiction of the Fair Work Commission has seen limited orders made to prevent further bullying where claims have been made, and compensation is not available as a remedy for bullying behavior.
But things are changing, especially in the area of sexual harassment where awards of damages for psychiatric illness are increasing. This reflects change in societal attitude towards this type of conduct that has (finally) started to be reflected in judicial pronouncements.
The spectrum of mental harm that can be experienced by victims of sexual harassment or bullying covers depression, anxiety and post-traumatic stress disorder (PTSD) any of which can be debilitating for a significant period.
Technological advances in monitoring and surveillance call to mind the lyrics of The Police’s widely misinterpreted hit, Every Breath You Take. But how will this emerging new frontier play out in workplaces and work practices? As technology continues to accelerate, many employers are starting to think about how to harness these developments in order to achieve greater workplace productivity and consistent health and safety outcomes.
When we think of workplace surveillance, it’s easy to get stuck thinking about the traditional measures that have been widely used for the last 10 years or so – email monitoring, CCTV and the occasional dash-board camera. These methods have historically been used for safety, security and compliance. But as workplaces become more remote and isolated and there are lower numbers of employees on any one site, organisations are looking beyond traditional methods and embracing the latest monitoring technology – both to deal with safety and security, but also as a direct way of measuring employee productivity.
The new frontier of workplace monitoring includes the use of:
- drones to monitor inaccessible work sites;
- caps worn by employees operating heavy duty machinery or vehicles which use infra-red technology to identify fatigue indicators such as yawning and prolonged blinking, and where such fatigue indicators occur, send an alert to either the employee or a manager;
- satellite monitoring of speed limits for employee driven vehicles in remote locations which instantly alert drivers and managers to speed limit infringements; and
- without getting too Matrix-y about it, there even exists headwear which can measure the electrical activity of the brain in order to determine when your mind, quite literally, isn’t on the job.
Some innovations haven’t even been applied to the workplace yet. For example, in the tech industry, it is common for companies developing apps and websites to road test new developments with consumers by using eye tracking technology to monitor where a tester’s eyes are drawn on a computer or tablet screen (and how long the user spends looking at particular parts). It is not a great leap to think that employers could use similar technology to measure employee productivity – for example, in call centres where time efficiency outcomes and work outputs are intrinsically linked. This technology could measure the workplace productivity (and therefore focus) of each employee by tracking their vision on a computer screen. There may also be compliance benefits for companies that require their employees to provide disclosures regarding transactions – this technology could measure whether an employee looked at those requirements on a screen prior to carrying them out. Or, simply, monitoring whether or not an employee looks at their mobile phone whilst driving a vehicle in the performance of their role.
Closer to home, technological advances continue to make us reassess and update our personal practices to allow devices to monitor our location and behaviour (hello exercise trackers, Find My Friend and the new Parked Car feature in the iPhone’s iOS 10 – trust us, it’ll weird you out when you get an unsolicited notification as to where you left your car). So is it only a matter of time before these technological advances, and the general comfort and acceptance of them, translate into the introduction of new monitoring and surveillance practices in our workplaces?
We think the answer is yes, particularly where there is little doubt that new technology could provide information that will deliver increased productivity and health and safety outcomes. However, putting to one side the legal implementation questions, these developments raise some serious operational questions for employers:
- what is the best method to measure productivity in your workplace and is there a technological advance that will make this easier? Simply introducing a new technology for the sake of appearing ‘cutting edge’ may be counter-productive and expensive.
- how will you balance the introduction of new technology with the cultural impact this might have on your employees? Employees may be reluctant to allow this sort of Big Brother monitoring and have legitimate concerns about how the information from new monitoring systems might be used. How you start the conversation with your employees regarding monitoring (especially in regard to the reasons why you are doing it) will be an important step.
Balancing increased workplace productivity and consistent health and safety outcomes with a positive workplace culture is not a new concept for employers, but we think that advances in technology (and our attitude towards technology) mean that a new frontier in workplace monitoring and surveillance will be a critical feature of the future of work and how employers measure productivity. The big question is, are we ready for it?
Working with many of Australia’s leading employers has given us strong insights into the planning and habits of the leaders of high performing organisations.
It is virtually an absolute that these organisations have a clear view of what business success looks like for them – they have a clear but flexible strategy and are relentless about executing it.
Importantly in managing their workforce and its culture – they know what high productivity looks like for their business and workforce.
It sounds like a statement of the obvious: on the docks crane lifts per hour are a standard productivity measure. Performance can be measured against competitors domestically and globally. Best practices are transparent and something to be aimed for.
But in other businesses the notion of productivity is a murkier one. The productivity of a senior banking professional or a teacher can be harder to measure, particularly if their role is not clearly defined or their performance not linked to an overall business strategy. There may be no universal or even widely applicable standards of high performance for benchmarking purposes.
This is where we see leading employers stand out. These are organisations that know what high performance means for their business. They have their own understanding of what productivity means to them and how to improve it. They can then make decisions about how their labour arrangements will facilitate higher productivity. They are conscious of hand brakes on productivity and work to remove them. We have the privilege of working on projects – sometimes brief, sometimes with work streams that run for years – to constantly move organisations to their desired frontier of high performance.
Whilst the productivity of Australia’s workforce overall has steadily increased (climbing approximately 10 index points to 104 index points since 2011 – good but not great) the picture looks different when we look through a magnifying glass at particular sectors or organisations. There the performance is more mixed – with factors such as legacy labour restrictions and underinvestment in capital resulting in some organisations being well behind the eight ball.
The positive story here is that productivity can always be improved – and the lower the starting base the more room for improvement!
But the first and most fundamental step is to know what it means for your organisation and to have a system to measure it. From there, the metaphorical sky is the limit.
In a world where smart phones and apps are evolving faster than you have time to update them, it’s important to take a moment to reflect on the potential for inadvertent disclosure and self-sabotage in the workplace.
Here are some issues to consider:
Dating apps in the workplace
Dating apps like Tinder, Happn and Grindr have a GPS function, so if a person has logged into them at work or anywhere near work, any colleagues who also have the apps will see the profile and potentially be suggested as a ‘match’. This can be not only embarrassing for employees who wish to keep their private life private, but may present discrimination risks if employers inadvertently come across personal information and it is perceived that the information influenced some action taken (or not taken) by the employer against an employee or potential employee.
To post or not to post, that is the question
It is much easier to find out when an employee who has called in sick is lying when their every move is recorded on social media. For example, each photo on Facebook can be assigned its own level of privacy and some people (consciously or unconsciously) allow their photos to have a public setting. This means that anyone can view the photos. Similarly, not everyone on Instagram has a private profile and most people assign a geotag to photos meaning that an employee may say they are in one place but a geotag on a photo will indicate another location.
Oversharing and privacy
‘Liking’ posts or adding friends on Facebook or LinkedIn where the settings allow a user’s activity to be shared, means that people following a user will find out any new connections they make and other information based on the posts they are liking, such as their political persuasion. Employers following their employees on LinkedIn for example, will be able to tell if the employee is connecting with recruiters and liking job posts.
Spotting the fakes
Anyone can easily make fake accounts on Facebook, Instagram or Snapchat, masquerading as someone else either to collect information or troll with negative or abusive comments. It can be difficult to track down and prove who is behind these accounts without the expense of digital forensics providers.
- Employers may consider cautioning employees to exercise care when using dating apps that have a GPS function. There are no guarantees of remaining undetected given the popularity of dating apps and common social areas where people congregate, including work sites. But if a person is really wanting to keep their dating life private, they can make a point not to log in anywhere in the proximity of the workplace and consider not using an identifiable profile picture.
- Employers should be careful of what they do with personal or confidential information about employees that they inadvertently come across through social media or apps. It’s a privacy and discrimination minefield out there depending on what an employer does, or is perceived to have done, with that information. If unsure, employers should seek advice before they act.
- Employers and employees should understand the privacy settings for every app they regularly use and be vigilant about the constant updates that can change the privacy settings. For example, WhatsApp recently shared users’ contacts with Facebook by default unless individual settings were changed.
- Ensure employees are warned to be cautious about adding colleagues on social media and that they verify it is not a fake account or a troll before accepting requests.
- Employers should be clear in workplace policies about what is and isn’t appropriate conduct ‘at work’, keeping in mind that ‘at work’ no longer just means physically at work. It’s about what has an impact on the workplace.
This isn’t an exhaustive list and as always, we would love to hear from you, so let us know if you have any cautionary tales or advice.
As the Beliebers of Australia will tell you, tickets for Justin Bieber’s 2017 “Purpose World Tour” were released in Victoria on Wednesday, 12 October at precisely 1pm. In a frenzy, fans across Victoria were using their employer’s time and resources to purchase (or miss out on) tickets.
As society becomes increasingly digitalised, it’s now common for employees to use their employer’s internet access for non-work related purposes. Referred to as ‘cyber slacking’, can be a source of frustration for many employers who endeavour to limit recreational internet usage for staff. On the other hand, many employees feel that due to the increasing demands of work life, such as long hours and weekend work, personal internet usage ‘on the job’ should be accommodated. Is workplace flexibility just about leaving work 15 minutes early for an appointment, or does it include personal admin tasks that are done during working hours?
In an age where flexible workplace arrangements are becoming increasingly popular, how far should this leniency stretch, and perhaps more importantly, what is deemed as “appropriate” personal administration? Is personal banking OK? How about perusing the latest shoe sale? Facebook? Trawling Broadsheet in search of Melbourne’s most perfectly poached 63° egg? Reading the newspaper online? Does the scope extend further to include personal printing of documents? Home calls on company phones?
For employers, drawing the line can be difficult. Frustratingly, there are no hard and fast rules on how to deal with employees using work resources for personal reasons. But, employers are entitled to impose and specify reasonable limits. In assessing how to balance these competing interests, it is important to take a practical and realistic approach. Employers are able to maintain some control over employee’s personal admin tasks through workplace policy and lawful and reasonable direction. All organisations are different and time apportioned will depend on the culture of the business.
What is clear is that it is unrealistic to never-say-never to employees in relation to personal admin tasks performed during working hours. Just as employees are increasingly expected to answer emails out of traditional working hours, employees expect employers to allow for some aspects of their personal life to intrude into work hours.
How is your organisation dealing with these challenges? We look forward to hearing from you.
Drafting and enforcing post-employment restraints has a lot in common with good medicine.
It is necessary to prescribe only the “minimum effective dose” – the amount necessary to produce the desired outcome with minimum side effects. Draft a post-employment restraint too narrowly, and it provides no remedy. Draft a restraint too broadly, and toxicity sets in – it won’t be enforceable.
This is particularly important in jurisdictions other than New South Wales where the courts do not have the ability to read down a restraint that would otherwise be unenforceable under specific legislation. The decision of the Supreme Court of Victoria in Just Group Limited v Nicole Peck  VSC 614, published this week, is a salient reminder of the importance of a targeted restraint. The Court decided that while Just Group had a legitimate interest to protect by restraining its former CFO, the wide ranging restraint went further than reasonably necessary and could not be salvaged. The restraint attempted to prevent the CFO from engaging in specified restricted activities for or on behalf of 50 named entities in the retail sector. It remains to be seen whether this decision will be successfully appealed.
In our series of post-employment protection blog pieces, we tackle each of the main legal and commercial issues involved in drafting and litigating post-employment restraints and unpack our Post-Employment Protections Legal Dimension map. We examine best practice approaches and the tactical issues that need to be thought through.
Please contact any of our partners to discuss the relevant legal touch-points or to access our unique online post-employment restraint solution.
Long experience representing many of Australia’s leading employers has taught us that in employment litigation the identity of an employee’s representative (be it a solicitor, union, industrial agent, etc.) is a major factor in how employee litigation runs.
Many representatives and firms in the employment market have a well-worn modus operandi. As practitioners, the more clearly we can identify and define the patterns, and develop tactics to anticipate and overcome them, the better the outcome that we can achieve for our client. For example, the tactics typically utilised by a high volume, fixed-fee employee litigation firm (which we refer to as “The Juggler”) will be different from a firm that seeks to put pressure on an employer by damaging the corporate brand through the litigation process (“The Celebrity”).
A good battle plan should consider game play of not only your opponent, but also their representative. Assessing the state of play early in the litigation may deliver invaluable insights into how your opponent is likely to run.
Our firm has recently published a paper titled ‘The Art of Law’ which explores the six most common litigation models and how to deal with them.
You can download your copy of The Art of Law here.
Please feel free to share with your team.
I very much hope you enjoy reading the paper and the unique insights it provides.
You can pre-register here for an exclusive round-table get together to discuss the modern employment litigation tactics explored in the paper. More details will follow.