Learning HR Lessons from Real World Cases

Vince Scopelliti - Wednesday, January 30, 2019

In recent years, there have been a number of cases heard in the Fair Work Commission and the courts which have resulted in important practical outcomes and learnings for employers, particularly in the area of workplace bullying. 

Let's take a look at some of these seminal cases.

volunteers can pursue bullying claims

The decision in Ryan v Returned & Services League of Australia (Queensland Branch) [2018] FWC 761 demonstrates that volunteers who are unpaid are entitled to pursue claims of bullying in the workplace. 

In this case, there was some dispute as to whether RSL Queensland, for which Mr Ryan volunteered, was a 'person conducting a business or undertaking' and a 'constitutionally covered business', within the meaning set out in the Work Health and Safety Act 2011

The commission ultimately determined that Mr Ryan was clearly a 'worker' within the meaning of the WHS Act, and held that the Pension Advocacy and Welfare Services (for which Mr Ryan worked, and which was under the aegis of RSL Queensland), was a constitutionally covered business at all relevant times when Mr Ryan was performing volunteer work. On this basis, it was found that Mr Ryan had sufficient standing to pursue a bullying complaint against RSL Queensland.

employer's failure to consider mental health

In Wearne v State of Victoria [2017] VSC 25, the Supreme Court of Victoria determined that an employer could be in breach of its duty to prevent injury to employees in circumstances where an employee complained of bullying and the employer failed to act on the complaints. 

Of particular significance for the court was the fact that the employee had advised her employer some years before she ceased work that she was suffering from occupational stress, was 'anxious about any ongoing contact' with former colleagues and experienced stress as a result. 

In particular, the court concluded that the worker's employers had 'lost sight of the goal of creating a workplace environment that was safe for the [worker's] mental state and minimised the risk of psychiatric injury'

Recommendation of workplace culture improvement plan

The Fair Work Commission determined in Sheikh v Civil Aviation Safety Authority & Ors [2016] FWC 7039 that while the specific circumstances of the employee's workplace did not support a finding of workplace bullying, there was sufficient evidence to suggest that some sort of remedial or consequential action was required. 

Accordingly, the employer was to design and implement a workplace culture improvement plan, which should focus on interpersonal relationship training, the introduction of a facilitated workshop regarding acceptable norms of behaviour, and the development of an appropriate and agreed work allocation protocol.

age discrimination 

A fairly significant compensatory award of $31,420 was awarded to the complainant in the NSW decision of McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273, following his allegations that his employment had been terminated when he was aged 62, because the worker had 'a bad back, bad hearing and was too old'.   

Although the company denied the worker's allegations, the NSW Civil & Administrative Tribunal (NCAT) found that the evidence suggested that it was 'more probable than not' that the worker was treated less favourably than he would have been if he had been younger.

reasonable management actions vs workplace bullying

In Ms SB [2014] FWC 2104, the Fair Work Commission considered what factors should be taken into account when determining whether an action was bullying or 'reasonable management behaviour'. 

An objective assessment must be made having regard to the circumstances and knowledge of those involved at the time, including what led to the management action, what occurred while it was in progress and what happened subsequently. Having regard to these factors, the Commission determined on this occasion that there was not sufficient evidence to support a finding of workplace bullying. 

It can be difficult for employers to interpret the findings and application of decisions made by the Fair Work Commission and various courts throughout Australia. If you require assistance in conducting workplace investigations, and making sound defensible findings, contact WISE today. 

Fighting Age Discrimination in the Workplace

Vince Scopelliti - Wednesday, July 11, 2018


At any given time, there are multiple generations operating in the workforce: new starters, more established professionals and those heading towards retirement.

While this can create a diverse positive workplace, where a range of different experiences, attitudes and learnings can be shared, it also creates a possible environment for age discrimination.

Age discrimination can occur at all stages of employment, including recruitment, the general office experience, in workplace terms and conditions and at dismissal.

What is age discRimination? 

It is against the law to discriminate against anybody in the workplace because of their actual or assumed age.

There are two main categories of age discrimination:

  • Direct age discrimination. This applies if somebody facing a disadvantage or an advantage in the workplace exclusively because of their age. For example, if an older person is overlooked for promotion because it is assumed that they are not as comfortable with technology as a younger person, this would be direct age discrimination.
  • Indirect age discrimination. This is more difficult to identify and generally applies in circumstances where there is an ostensibly fair policy in place for all staff, which nonetheless is likely to affect staff of different ages in different ways. An example could be an employee being selected for redundancy simply because they are thought to be closer to retirement age and less likely to be affected by the redundancy.

Not Just a problem for older workerS

Although many people assume that only older workers are discriminated against, workers of all ages can become victims of age discrimination.

Examples include:

  • Young workers may be discriminated against due to:
      • Their relative inexperience in a role.
      • A perceived belief that they take their job less seriously, which may lead to them being overlooked for promotion.
      • A failure to receive increases in remuneration because co-workers who are older and have families are considered to be in greater "need" of increased pay.
  • Middle aged workers may experience discrimination arising from:
      • A perception that they lack the seniority and experience of older workers but don't have the "fresh ideas" of young staff.
      • Company events being held at times when staff with young families may struggle to attend.
  • Older workers may experience age discrimination due to:
      • A perception that they do not understand or cannot keep up with new technologies.
      • Their ideas being dismissed as being "outdated" or "old fashioned".

Legislation governing age discrimination

The applicable Australian legislation is the Age Discrimination Act 2004, which ensures discrimination is against the law, including in employment, accommodation, service provision or education.

However, it is important to remember that in certain circumstances it is lawful and may even be appropriate to treat people of different ages differently. These include:

  • When required to do so by state or Commonwealth law (for example, superannuation funds not being permitted to release money until members have reached a certain age).
  • Complying with certain health and employment programs.
  • Paying staff in accordance with youth agreements and awards.

Similarly, if somebody's age prevents them from performing the inherent requirements of the job they have applied for, it is not discrimination to refuse that employment. For example, if somebody under the age of 18 applies for a job in a bar then it is obviously not discrimination to refuse them employment.

What to do if you're experiencing age discrimination

As an employee, if you feel that you are experiencing age discrimination, you can either elect to take up any complaint internally (through the organisation's usual complaints procedures) or by making a written complaint to the Australian Human Rights Commission. Once received, the complaint can be investigated, and attempts made to resolve it via conciliation.

Alternatively, a final option could be to pursue a complaint through the Federal Court of Australia or the Federal Circuit Court.

What can workplaces do to help prevent age discrimination

Having strong policies in place to ensure that all staff are treated equally regardless of their age is one of the key factors in preventing age discrimination.

Providing equal access to training opportunities for all employees and offering flexibility around hours regardless of life stage can also help fight discrimination.

If you need help with age discrimination workplace policies and procedures, or if you have a question about age discrimination that you'd like to discuss, contact WISE today for support and guidance.