пятница, 26 апреля 2019 г.

Австралия. Два директора (муж и жена), мужу запретили увольнять подружку жены


Актуальная тема, ссора руководства – как спасать при этом фирму. Но в данном деле вопрос был другой. Работница перенесла «an anxiety attack» (приступ беспокойства), что установил доктор,  и получила право выполнять более легкую работу  was placed on light duties»).  Еще раньше, указанная работница обратилась в Комиссию по защите прав работников (Fair Work Commission) с заявлением для получения предписания прекратить психологическое насилие(«for an order to stop bullying»).

Комиссия предписала, что: а) только жена директор имеет право теперь подвергать данную работницу дисциплинарному взысканию, в том числе увольнению; б) директор муж имеет право общаться с данной работницей только по электронной почте.

Все началось из-за ссоры жены и мужа.   Заместитель председателя Комиссии в своем решении указал: «It is the responsibility of adult persons who own a business, when placed in a position of personal dispute, to have sufficient presence of mind to comply with their lawful obligations including to their employees if they wish to maintain direct personal involvement in the business during that period of private turbulence» (Это просто обязанность взрослого человека, который является собственником предприятия, во время выяснения личных отношений оставаться беспристрастным, чтобы выполнять свои обязанности, установленные законом, в том числе и те, которые касаются отношений с работниками, если уж есть намерение заниматься управлением предприятия  в то время, когда одолевают личные проблемы).  


 
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  • ‘Grow up’ FWC tells company director
  • Your questions answered: Are we allowed to limit the number of bargaining representatives when negotiating an enterprise agreement?
 

 
Editorial Team
Editorial Team
Friday 26 April, 2019
 
 
‘Grow up’ FWC tells company director

When a company director’s relationship with his co-director wife broke down, a female HR manager in the family business became the victim of his bullying.
The employee at Hoad Water Cartage in Adelaide applied to the Fair Work Commission (FWC) for an order to stop bullying.
She told the FWC that on multiple occasions the director had communicated with her in a rude, belittling and abusive manner which made her feel personally and professionally insulted and humiliated.
The director told her on numerous occasions that “no one else would employ you” and he allowed another male colleague to continually refer to her as “that f---ing woman” in his presence.
He demeaned the employee’s working relationship with his wife, describing it as a “girlfriends club” and said “they don’t know what they are doing because they aren’t truck drivers”. He also sent the employee belittling emails which he copied a female co-worker into, an action which his wife described to the FWC as “humiliating and demeaning”.
Director hires lawyers to intimidate the employee
The director’s ongoing bullying behaviour, which began in mid-2017, culminated in his lawyers sending the employee a letter in September 2018, claiming that she was insubordinate and disputed his authority by reporting to his wife, who he called a “rogue director”.
The letter warned of dismissal “should your behaviour continue”.
“We confirm that under the organisational chart our client is Managing Director and you are to answer to him,” it concluded.
The following day the employee filed her application for an order to stop bullying.
About two months later she suffered an anxiety attack and under South Australian WorkCover laws was placed on light duties by her doctor.
Despite this, a couple of weeks after, the director sent her about 50 emails in one day, requesting her to process reimbursements for expenses. Later that afternoon she visited her doctors again and was certified unable to work for two weeks.
“Collateral damage” in the marital dispute
FWC Deputy President Peter Anderson said the “bullying conduct was serious and conducted over a prolonged period” and “was initially driven by [the male director’s] unwillingness to provide full and proper respect for [the employee’s] role and her position as a female manager”.
He described the treatment of the employee as “collateral damage in the matrimonial dispute” that the male director was indifferent to.
“It is the responsibility of adult persons who own a business, when placed in a position of personal dispute, to have sufficient presence of mind to comply with their lawful obligations including to their employees if they wish to maintain direct personal involvement in the business during that period of private turbulence,” he said.
Remorseless director banned from any further supervision
“The matrimonial dispute between [the couple] remains on foot and remains acrimonious. Both continue to work in the business. [The male director] contested this application and, apart from an apology in the witness box for describing [the employee] as a ‘side-kick’ he displayed no regret or remorse for the conduct he engaged in. He denies some of the conduct I have found to have occurred, and considers all other to have been reasonable management action. He has an unreformed view about [the employee] being part of a conspiracy against him and his business and, to date, appears indifferent to the bullying she has experienced and its impact on her,” Deputy President Anderson said.
He ordered that the male director, or anyone acting on his behalf, would not be able to discipline or terminate the employee and that only the female director would have authority to sanction her “should [her] work performance (objectively assessed) be deficient or should she engage in misconduct”.
The male director is now only allowed to communicate with the employee via email, in a “professional, respectful and business-like” manner. He has also been ordered not to denigrate or disparage the employee to any third party.
“It is regrettable that orders are made requiring adult persons to act civilly in their communication as employer to employee and as business owner to manager. Yet that is what is required in these circumstances,” Deputy President Anderson said.
Do you know the legal line between reasonable management action and bullying?
The employment lawyers at Holding Redlich do.
You can tap into their professional knowledge and learn exactly what is and isn’t reasonable management action in the Employment Law Practical Handbook.
Find out more.

 



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Your questions answered:
Are we allowed to limit the number of bargaining representatives when negotiating an enterprise agreement?

Q
Is an employer legally allowed to place a limit on the number of bargaining representatives that can participate during an enterprise agreement (EA) negotiation process?
We have an EA that currently stipulates a total of seven bargaining representatives can be nominated for the purpose of the EA, but we have received eight nominations. Are we legally allowed to hold a vote among employees to have this number reduced to seven, as detailed in the EA?


A
There is no prohibition on you asking employees to vote to reduce the nominated bargaining representatives from eight to seven.
In suggesting any vote, you should keep in mind that the obligation to negotiate EAs in good faith includes an obligation to recognise and bargain with the other bargaining representatives who have been appointed to negotiate the agreement.
As such, if your employees insisted on eight bargaining representatives, you could only refuse to accept this situation with the approval of the Fair Work Commission (FWC).
The FWC would only permit this if you convinced it that the existence of eight, rather than seven, bargaining representatives unduly disrupted the bargaining process.
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