вторник, 2 июня 2015 г.

Австралия (трудовые отношения). На рабочее место врача рентгенолога без предупреждения во время рабочего дня приходили два менеджера, один из которых задавал вопросы рентгенологу в грубой форме, а второй открыто насмехался над неприятным положением опрашиваемого врача. Доктор обратился в Комиссию по защите трудовых прав, чтобы остановить указанное поведение менеджеров. Комиссия не потребовала у нанимателя прекращения указанного поведения менеджеров в связи с тем, что таковое уже было прекращено посредством указаний высшего руководства компании. В настоящий момент работник судится с компаний в федеральном суде, доказывая нарушение своих прав работника.


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Monday 1st June 2015
How one employer righted their 

wrongs and avoided a bullying 

claim

In today's Workplace Bulletin:
  • Case law: FWC opts against anti-bullying order after employer reforms behaviour
author image
Dear Reader,
If you’d done something wrong as an employer, would you ‘double down’ on your mistake?
Or would you be able to take a clear-minded look at your process and start trying to set things right?
Acknowledging when you got it wrong can be hard in all walks of life, but in the workplace it can be particularly tough.
There’s a lot of pride, a lot of feeling – and even a lot of money – at stake.
The case I talk about in this Workplace Bulletin is one where one employer stopped fighting a bullying allegation, and started focussing on getting its own house in order.
The result? The FWC lauded the employer’s “careful attention to procedural fairness”, and declined to make an anti-bullying order under its powers.
Like so many FWC accounts that cross our desk – not just the bullying ones, but the unfair dismissal, discrimination, and general protections cases – it all began with a poorly-handled disciplinary procedure.
Having seen the lay of the land, we launched the Managing Misconduct eBook two weeks ago. And the response from our readers has been massive. Clearly, there’ve been a lot of unanswered questions about your rights and obligations managing misconduct in the workplace.
More generally, it’s encouraging to see that employers aren’t interested in making the mistakes over and over again and calling it “business is usual”. Read on to see how one organisation righted the ship…
If you ever have to manage misconduct in your workplace,
there are six crucial things you need to consider.
Click here to find out what they are...
Case law: FWC opts against anti-

bullying order after employer 

reforms behaviour

In Willis v Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Carroll (2015), the FWC reaffirmed that when assessing a bullying claim, it will carefully assess whether the bullying conduct is likely to continue.
In this case, they were satisfied that it would not – but crucial to that finding was the subsequent conduct of the employer, which demonstrated its commitment to taking a procedurally fair approach despite its initial mistake.
What were the facts? 
This matter began in 2014, when Mr Willis, a radiographer employed by Capital Radiology, was confronted by two managers who visited his place of work unannounced and conducted an interview without notice about performance matters.
Mr Willis claimed that the one manager continuously berated him during the meeting, while another showed amusement at his situation.
After further email interaction, one of the managers then commenced disciplinary action against him.
Mr Willis then applied to the FWC seeking an order to prevent alleged bullying at work.
What was the outcome?
Initially, Capital Radiology responded by seeking to have Mr Willis’s application dismissed, saying that action taken was reasonable management action, carried out in a reasonable manner. The FWC rejected Capital Radiology’s contention.
The Commissioner found that it was unreasonable for the managers to turn up at Mr Willis’s place of work as they did, and that the manner of their actions was “unreasonably abrupt and threatening”.
Instead, the Commissioner suggested the most simple and reasonable course of action would have been to advise Mr Willis of the proposed meeting and its purpose in advance, and explain the expectations for Mr Willis’s role in a supportive way.
So why wasn’t an order made?
Another hearing was held to consider whether an order should go ahead. Under the Fair Work Act, a ‘stop-bullying’ order can only be made if the FWC is satisfied there is a risk that the applicant will continue to be bullied at work.
Considering this, the FWC found that none of the actions Capital Radiology had taken after they had been notified of the decision concerning their management action were unreasonable.
The Commissioner found that the employment situation had been managed “at the highest level” of Capital Radiology, “with restraint and patience”, and the two managers who were originally involved have since had no direct interaction with Mr Willis.
He also credited the employer’s “careful attention to procedural fairness” that “could not be faulted”. In other words, Capital Radiology had moved fast to addressed the concerns which the FWC had raised – and so there was no risk bullying would continue.
What you can learn
Mr Willis is continuing to take proceedings against his employer in the Federal Court of Australia, claiming breaches of his workplace rights.
However, if his employer has indeed gone out of its way to correct the earlier flaws in the procedure, this is likely to reflect well upon it.
If you deal promptly and effectively with a bullying situation at work (even if there were mistakes made at the start) you can avoid an order being made against you in the FWC (and all the bad publicity that carries).
And the general principle of accepting a mistake in the process and remedying it – of not doubling down on an error – will serve you well in any employment dispute.
Until next time,
J. Nunweek signature
Joseph Nunweek
Editor, Workplace Bulletin
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