What are your rights in terms of bullying in the workplace?
Read the full transcript from the show below.
Tuesday, 25 March 2014
CS – Chris Smith/DT – David Taylor/C1,2,3 etc– Callers
CS Ok David Taylor from Turner Freeman Lawyers as sponsors of our segment, Legal Matters and this is a very rare opportunity, as I tell you each and every Tuesday to get free advice from a lawyer, unheard of, 131873, free advice if you’ve something related to employment law to talk about maybe some aspects of bullying that have gone on in the work place that you’d like to clarify, maybe some contract you have with an employer that you’d like to break, under what circumstances can you do that. Under what circumstances can they do it to you? What about redundancy? Are you getting your full entitlements? and what about any kind of compo in the work place, what are your entitlements and what should you do about making sure you receive them. 131873 is the telephone number, he won’t be here forever, David Taylor he’ll be departing just before 2 o’clock so jump on right away and we’ll get to your calls as quickly as we possibly can. Dave welcome to the program again
DT Hi Chris how are you today.
CS So, I’m very well, I’m just trying to make this topical today, employment law, will Craig Thompson get a job again?
DT You’d think he’s going to struggle wouldn’t you.
CS I think he will struggle, even though is just told everyone that he is innocent again and someone cloned his identity. I think he’ll struggle.
DT I think he’ll struggle
CS It’s interesting though in a work place sense he has got in front of Parliament and this is question without notice, but in Parliament and he has told porky’s and you wonder at that point, how do you, how are you punished for that when actually no longer a Parliamentarian, it’s almost impossible to do, because you don’t work for the people any more.
DT The damage to his life has got to be pretty significant, I mean accepting you know what’s happened and what he has done, you’ve got to think it’s a pretty hard long road back to anywhere from where he is now.
CS Oh he’ll cop it verbally in the street every time he walks down the road.
DT I mean he has gone from being respected and esteemed to this.
CS Yeah, the bottom of the pit! Ok twenty to two David Taylor from Turner Freeman, lets go to callers straight away, Chris, David is listening.
C1 Oh g’day David, my wife is due to go back from maternity leave to her work and she has asked for 4 days a week. Now they haven’t come back in writing after a month and I’m just wondering what avenues or courses can we actually go down to peruse it and what rights do we have?
DT Yeah, it’s a really interesting issue there are, there’s an entitlement to request flexible working hours, but the basic entitlement for maternity leave is to come back into the position that you were in before you left, so if you were full time to come back to a full time position, but there is also an entitlement to request some flexibility about the working hours and there is an obligation on, if the request is put in writing, there is an obligation on the employer to provide a response in writing, and they can only deny that response, they can only deny the request on reasonable business grounds. So I think the step for her to be going back to them in writing and asking what their response is.
C1 Ok, yeah so we’ve done that and it’s been I think about 4 weeks since we did it, is there any like repercussions if they don’t respond back within a certain time frame or?
DT There is an obligation to respond and if they’ve failed to respond, that’s a breach of the Act. There are certainly steps you can take to ensure that they, they don’t breach there obligations under the Act.
C1 Alright no worries, thank you for that.
CS Good onya Chris, thank you very much for that. How has it changed over the years in terms of maternity leave and the amount of time that someone who is having a baby and has the baby can have off? The standard was 12 months right.
DT Yeah that still very much the standard, there are some industries where they look at longer periods and I know certainly in education there’s some systems where you can have much longer period and still maintain access back to your job. The normal standard that, and certainly the standard in the Fair Work Act, is that you’ve got an entitlement to 12 months. That’s very much standard
CS Without pay?
DT Without pay, although there are the paid maternity leave things which are supplementary to that, but the period off is still 12 months and that’s the period of maternity leave.
CS What about paternity leave? I know there is some major corporations that allow husbands to have time off and it’s not taken out of their holidays, it’s not taken out of the sick leave.
DT There is some scope within the Act now for paternity leave. So there is an entitlement to paternity leave although it talks more about primary and secondary care givers, and it’s generally complimenting up to the 12 month period is the way it’s often looked at.
CS Ok, Darryl, go for your life, David Taylor is listening from Turner Freeman.
C2 Oh, thanks g’day David how you going mate.
DT Hi Darryl how are you.
C2 Good David, my wife was subject to a whole lot of extended bullying for a 12 month period, during that time she complained to some of her superiors, she complained to a member of the board, it was ignored. A couple of weeks ago she complained to another board member, 4 days later she was dismissed, they told her they weren’t going to renew the contract. To cut a very long story short, she has lodged a claim with WorkCover, she sent an email to the board members, they responded saying they were going to have a management consultant company contact her to do an investigation, interestingly enough it was the same management consulting company that dismissed her which I thought was rather a conflict of interest, but anyway during the interview that we had with them they weren’t going to question any of the people that were witnessed to the bullying who no longer work for the company, which I thought was incredibly strange.
DT Bullying is, we were going to talk about it a bit later, bullying is one of the most vexed and difficult areas around workplaces. What’s happened to your wife is obviously a little bit different, because from the sound of it, it’s coming out of that bullying context that she seems to have lost her job. And that certainly does create rights that she’s got and the primary right rather than one with WorkCover, although WorkCover are obviously very interested in this and they should be because it’s a real issue of health and safety
DT Is to look at things like and unfair dismissal claim.
C2 We’re not so concerned about the unfair dismissal, I mean she doesn’t want to get her job back, I mean it’s a small thing, but they’re going to make life incredibly difficult for her if she was to go back, but the issue was, I mean she is a serial bully it has happened before and this is what has happened in the past and it’s happened again, 2 or 3 people in the past have also been bullied out of the work place.
DT Yeah, I hear what you’re saying in terms of what she doesn’t want to go back there and that certainly true, unfair dismissal is in part designed to try to get people who were unfairly dismissed back into the job, although for a lot of people it’s about compensation as well.
DT It’s also though a process that has real consequences for employers which means that they actually look at what’s happened and their processes and often make change to ensure that they don’t find themselves in the same situation again.
C2 Yeah, I mean they have had the same situation you know against her a few times in the past and they continue to ignore the advice, so I just find that quite bizarre, certainly they are opening themselves up to some kind of litigation aren’t they in that regard just to continually ignore
DT Potentially there are a range of claims that would be unhelpful down the track for them. But ultimately work places are always complex and there is a range of different people going, it’s trying to find an accurate assessment about what’s happened.
C2 Yeah, should she continue this claim through WorkCover. Will that WorkCover investigate it, will they talk to the people who no longer work for the company who will were witnesses to it?
DT I don’t know
C2 You don’t know
DT I don’t know how WorkCover operate in those sorts of investigations. They seem to do a range of different things at different times.
C2 I won’t hold up any more of your time, thanks very much.
CS Good onya Darryl, thank you. A couple of quick emails I’ve got one here from a Matt, in Sydney,
I have been at fault in an accident in a company vehicle whilst I was at work. I’ve signed a policy that says I have to pay an excess on the company’s insurance if I am at fault. Is this OK under the Employee Liability Act in the state of New South Wales?
DT Almost certainly not, there is legislation in New South Wales that means that employers can’t recover from employees, liability created by the employee when they’re doing their job. So if he was grossly negligent if he deliberately damaged the vehicle, he drove it into the wall for fun, then they could, but if it’s the sort of thing happens from time to time and it’s a car accident, then notwithstanding the policy they have got no real capacity to recover.
CS Well he should at least go back to the company finance director or whoever and challenge the fact that he pays the excess right?
DT Certainly he should.
CS Alright that’s interesting, or maybe he shouldn’t have signed anything in the first place that said he had to?
DT Yeah, it’s always hard though, expecting somebody to understand the intricacies of the Employee Liability Act is a pretty tough ask.
CS Yeah, very much so. Thirteen to 2 o’clock we’re with Turner Freeman’s David Taylor at we are very happy to take your calls on Work Place Employment Law, 131873.
CS As I mentioned earlier we have been fossicking around to try and find the complete slab of what Craig Thompson had to say when he emerged from Court after receiving bail, and I wanted to make sure that you heard from his mouth, the fact that he is innocent and that’s the most important bit, we’ve finally found that and this is what Craig Thompson had the temerity to say…..
CT “today wasn’t what we were looking for in terms of where this is, I’ve always maintained that I’m not guilty in relation to the charges that I’ve been convicted of which is why we’ve appealed”
CS I’ve always maintained that I’m not guilty which is why we’ve appealed. The hide of the bloke and I tell you what if your emails are anything to go by you are furious. Fitz writes from Kincumber, whose sorry now, not Craig Thompson, 2 fingers in the air to all who dare criticise him and he gets bail, where is the justice? Why 8 months for the appeal to be heard. Disgusting absolutely mind boggling. It is and Fitz has described it perfectly. Did we expect anything different though. 1311873. I’ll take your calls on that a little bit after 2 o’clock. We’ve also got travel coming up and a whole heap more. It’s eight minutes away from 2. Turner Freeman the sponsors of our Legal Matters segment and David Taylor quite happy to take your calls, Sonia go ahead
C3 Oh yes thank you for taking my call David, I have been working in retail for the last 22 years, I am now aged 75 and during this period 2 different owners have had the shop. Am I due for long service leave and how do I go about requesting this when I do make a decision to retire.
CS Good question
DT You are due for long service leave. Employees, almost all employees become entitled to long service leave after 10 years of service.
DT And that continues to accrue at the rate of a month for every 5 years in most circumstances. From then on, so if you’ve got 22 years, you’ve got 4 months worth of long service leave and there is an obligation to pay you the value of that on termination if you don’t take it while you’re employed.
C3 OK and even if I’m sort of a part-time, they have issued me a contract to work 2 days solely for that company over that period, but I wondered how I go about lodging a request for when I retire, do I just ask for payment for long service leave?
DT When you retire you can, they should be paying you, are you a casual employee or a part-time employee?
C3 That I’m not too sure how you word that, they have put me under contract for 2 days a week over the last 22 years, I just signed a contract
DT If you’re sick do they pay you for sick leave or not?
C3 No, I don’t get paid for holidays or sick leave, purely 2 days a week and that can change they might want an extra day here and there, but
DT Well in that case, there is a formula in the Act for how you work out the rate that you would be entitled to long service leave payment at, but on termination they are obliged to make that payment to you.
C3 I see and if they refuse that, where do I go into it.
DT It is a State Act, so you would go to, there is a couple of Courts, but the Local Court or the District Court. So it’s New South Wales Long Service Act, is the Chief Industrial Magistrates Court and you can make the claim there, and there obliged to make the payment to. Most employers would know about that and most employers would make that payment on termination.
C3 OK so I do have an application to a Court if it’s not paid.
DT You do
C3 Thank you very much, I appreciate it.
CS Good onya Sonia, Christian about redundancy and it’s a question that came in when you were last in the studio but we didn’t have time to get to it and I thought to myself I’ve got to hang onto this so that next time David Taylor comes in we can ask, if someone’s made redundant, all of a sudden their position doesn’t exist anymore they get their appropriate payout, see you later alligator! What if about six months down the track someone else goes into a position that looks awfully like the position that was classified as redundant?
DT Yeah, it’s really hard. It’s both common and hard. when
CS Who’s policing this stuff?
DT Essentially nobody and there is very little that can be done. If you can establish, you can’t terminate someone for redundancy, so you can’t retrench someone unless you genuinely no longer require the position to be done by anybody, so if the employee could show that at the time you were retrenching them, in fact this is just a rules to get rid of that person and you are going to put somebody else in, a month or two or three months down the track, then that is not a bona fide redundancy and that would be unlawful.
CS And you would go to the Fair Work Australia mob.
DT Yeah, you would generally go through an unfair dismissal process to able to challenge that.
CS OK. Masoud writes in an email, I am on a verbal contract with my employer, what are my rights in relation to dismissal, can they dismiss me whenever they like? Or is my verbal contract similar to a written contract?
DT Yeah, there is no. The thing about verbal contracts are they’re a bit harder to know the terms of them, because there not written down, so you can’t see it. But it’s still just a contract. So I was trying to work out what the terms are, dismissal can only be done generally by provision of notice and the amount of notice is what’s agreed.
CS Amy, I’ve only got thirty seconds, quickly
C4 Oh Hi, I was just wondering if with the work place I’ve recently left, we weren’t allowed to go to the toilet unless it was in a designated break, I’m just wondering is that allowed?
DT No, would be the.
CS Sounds like a school playground or school classroom.
C4 Oh it was just absolutely hell on earth and things like that were you couldn’t get up and stretch from your desk, they’d tell you to sit down and.
CS Is this in the middle of Beijing is it? Laughter, very quickly we’ve only got 10 seconds left the ruling on that one.
DT Well I think quite clearly, pretty obviously that would be a risk to health, if you are requiring people to sit there and not go to the toilet you are going to do them damage, and you can’t have a work place where you are damaging people’s health so.
CS So she should go to.
DT I think WorkCover would be a good place for her to go.
CS OK, David thank you for that much appreciated, we’ve run out of time, David Taylor from Turner Freeman.