Harris v WorkPac Pty Ltd [2013] FWC as discussed by Michael Byrnes in ‘Decision an Insight to Approach in New Bullying Jurisdiction’ (2013) 51Law Society Journal52–53.
3.
We do not use ‘target’ and ‘victim’ synonymously with ‘employee’ in recognition of the fact that employers may experience workplace bullying.
4.
This is the observation of one of the authors, BallardAllison, who works as a legal practitioner in employment and workplace relations, specialising in workplace bullying, harassment and discrimination.
Balthazaar v Department of Human Services (Commonwealth) [2014] FWC 2076.
10.
See McInnes [2014] FWCFB 1440 and Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408.
11.
Ibid.
12.
According to the Revised Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth), the FWC could make orders for an individual or group to stop the behaviour; that an employer regularly monitors the behaviours in question; that there be compliance with an employer's anti-bullying policy and also that any such policy be reviewed; and that information and additional support and training be provided to workers.
13.
‘Workplace Bullying’ is defined at section 789F(1) of the FW Act. Contractors, labour hire personnel and persons engaged under other workplace arrangements are covered.
For example, the Work Health and Safety Act 2011 (ACT) section 19 (primary duty of care), section 27 (duties of officers), section 28 (duties of workers), and section 29 (duties of other persons at the workplace).
24.
People who incur legal costs in any type of matter within the FWC generally pay their own costs (FW Act s 611(1)) although the FWC does have the discretion to order one party to pay the other party's legal costs (s 611(2)). In practice, such an order is extremely rare.
25.
For example, if a target is a worker covered by Comcare, the Commonwealth workers' compensation scheme, and they suffer a degree of permanent impairment by way of psychological injury, they are entitled to apply for a one-off ‘capped’ lump sum payment for non-economic loss (s ee section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)).
26.
EastealHampton, above n 17.
27.
Ibid. 55% of matters that used expert witnesses were upheld; only marginally more than the half of those that did not.
28.
Hamilton v Nuroof (1956) 96 CLR 18.
29.
van der WaardenNatalie, Employment Law: An Outline (LexisNexis, 2010) 93.
EastealPatriciaPriestSusan, ‘Employment Discrimination Complaints at the ACT Human Rights Office: Players, Process, Legal Principles and Outcome’ (2007) 8(1) Contemporary Issues in Law62–79.
34.
Note that if the client has been terminated, any unfair dismissal or general protections (dismissal) must be made within 21 days, and an unlawful termination application within 60 days (at least in the Federal jurisdiction).
35.
That is, alleging adverse action by way of discrimination under section 351 of the FW Act.
36.
See Fair Work Act 2009 (Cth) s 734 (1)-(2).
37.
Australian Human Rights Commission Act 1986 (Cth) ss 46PF (1) and (5).
Various grounds for termination are listed under the Australian Human Rights Commission Act1986 (Cth) s 46PH.
41.
Ibid s 46PO.
42.
GazeBethHunterRosemary, Enforcing Human Rights in Australia: An Evaluation of the New Regime (Federation Press, 2010).
43.
EastealHampton, above n 17, 75.
44.
For example the Safety, Rehabilitation and Compensation Act 1988 (Cth) which applies to Commonwealth and ACT government employees, and the Workplace Injury and Workers Compensation Act 1998 (NSW).
45.
Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284, 71.
46.
Naidu v Group 4 Securitas Pty Ltd [2006] NSWSC 144; Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284, 20: The plaintiff was assisted by having kept diaries ‘corroborative of abusive behaviour … of an intimidatory, harassing and bullying nature’. Blenner-Hassett v Murray Goulburn Co-Operative Co Ltd [1999] VCC 6; Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64.
