Diversity & equal rights

Bullying behaviour comes in all shapes and sizes.  Identifying and deciding how to respond to diverse bullying behaviour by a worker (or workers) can create challenges for employers.

Recent headlines have cautioned that unfriending on Facebook could be considered bullying. That this seemingly innocuous action has been elevated to “bullying” has been the subject of many concerned water-cooler discussions since hitting the mainstream press.
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The spectre of claims under anti-discrimination legislation (and the related media) appears to drive nervousness in some businesses. This is especially the case when dealing with longer term ill or injured employees. In this blog we make two suggestions about how to handle this issue in the context of non-work related illness and injury:

  • Be open and transparent with employees when determining what their illness or injury means for their ability to work, and
  • In deciding whether a business is required to make ‘reasonable adjustments’ in the workplace to enable a disabled worked to continue working, the inherent requirements of the role must be able to be identified with ease and precision.

These suggestions are discussed in more detail below.
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Are participants in a workplace investigation, as complainant or alleged perpetrator of misconduct, ‘untouchable’ by their employer – can their performance be managed, can they be disciplined, can they be retrenched without risk of court proceedings against the employer?

There is a view in legal and HR circles that the threat of claim by employees in the Fair Work Commission’s ‘adverse action’ jurisdiction means participation in a workplace investigation makes participants immune from any ‘adverse action’ by their employer. The action is not even justified by circumstances unrelated to the facts the subject of the investigation if it is merely contemporaneous with the investigation. This is a myth!
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The workplace gender equality reporting requirements have been criticised for being too onerous on employers.  But changes are afoot.  On 25 February 2015, Senator Eric Abetz, the Minister for Employment, and Senator Michaelia Cash, the Minister Assisting the Prime Minister for Women, announced changes aimed at reducing the complexity of the reporting requirements. 
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Recently, Virgin Group announced through its CEO Richard Branson, that it would be removing its workplace policy that limits holidays for employees. The ‘no policy’ approach to annual leave is to be implemented as a flexible working policy measure that allows all salaried staff to take off as much time as they want, whenever they want with no managerial monitoring of time away from work. The announcement was made during school holidays in Australia.
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On 15 July 2014 the Full Federal Court awarded a victim of sexual harassment $100,000 as compensation for her distress caused by the sexual harassment of her by a colleague at work. Before this decision compensation for non-economic loss in sexual harassment claims in Australia had effectively been capped at $20,000 (other than in cases of psychological trauma resulting in inability to work). 
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