The Equal Opportunity Blog

A recent case[1] highlights that one person's perception of bullying may in fact be appropriate performance management.

Mr Hill, a “postie”, suffered from a psychiatric condition diagnosed as a “major depressive disorder”, which was brought about in large part by his employment.

Mr Platt, the supervisor, over a period of time performance managed Mr Hill in relation to the delivery of his mail, as he was taking too long.

Mr Hill lodged a claim for compensation for “work related stress/bullying” The claim was rejected by the Tribunal on the basis that the employer was not liable to pay Mr Hill compensation for his condition because it was the result of reasonable administrative action, taken in a reasonable manner in respect of his employment (under s 5A(2) of the Safety, Rehabilitation and Compensation Act 1998 (Cth), an employer is not required to compensate an employee where a disease or injury is suffered as a result of reasonable administrative action taken in a reasonable manner).

The tribunal held that-

• It was reasonable for the employer to both question and performance manage Mr Hill given the time it took him to do his round
• Mr Platt reasonably arranged the formal counselling interview in accordance with company policy, and no threatening or intimidating conduct took place in that interview.
• Mr Platt’s observation’s of Mr Hill on his rounds was not unreasonable in the course of his duties
• Mr Platt’s conduct did not demonstrate bullying but reasonable supervision of an underperforming employee

 While Mr Hill’s depressive disorder was caused by the performance management that Mr Hill underwent as directed by Mr Platt, because there was a valid reason for that management and it was done, at all times, in accordance with company policy, there was nothing that was unreasonable in the course of that performance management.

This case demonstrates-  

1. Perception of bullying can lead to mental illness even if the facts do not support bullying
2. Managers need to follow good company practice at all times when performance managing their staff and it is wise to document the process followed.
3. Worker’s compensation does not always follow a substantiated mental illness caused in the course of employment

Victoria has now created news laws under their old stalking laws that could result in workplace bullies and cyber bullies facing criminal charges and up to 10 years jail. The Victorian amendments, nicknamed “Brodies Law” was prompted after the death of 19 year old Brodie Panlock 5 years ago when she jumped to her death from a building after being severely bullied by co-workers in a Hawthorn café. The new law will now see people who use abusive and/ or offensive words or acts in the presence of others or directed at others (like swearing) with the risk of a criminal charge. Brodie’s co-workers abused her, spat on her, poured beer over her and held her down while she was doused in cooking oil. When she first attempted suicide, she was mocked for failing, and then offered rat poison. They were later convicted along with the cafe owner of a serious of offences under the Occupational Safety and Health Act and fined over $300,000. Today if these same behaviours occur they could result in criminal convictions and time spent in prison. Victoria is sending a message to all Victorians and perhaps to all of Australia that these behaviours will not be tolerated.

The Fundraising fireman’s calendar has come under scrutiny in recent weeks. Some nurses at Princes Margaret Hospital made a complaint that the Fireman Calendar displayed at work was inappropriate. What do you think? It’s basically a bunch of hunky, bare chested men in fireman outfits, no willy’s are waving so isn’t it okay? Under the law, sexual harassment is unwelcome behaviour or language, of a sexual nature and a reasonable person is or could be humiliated, offended or intimidated. If the behaviour ticks off this definition, then it is considered sexual harassment. The outcomes of the cases that have gone to the courts, in relation to scantily clad women are that the pictures are enough to be sexual harassment. If it applies to photos of women then it should apply equally to photos of men. “But it’s a fundraiser, that should make it ok, right?!” No, it makes it okay to buy it but not necessarily okay to display it in the workplace. While the calendar is at the lower end of behaviour that could be sexual harassment, it is a risk and a wise workplace would advise their staff to keep it at home.

Adam, a 36 year old specialist IT engineer applied for a job with a recruitment agency and was told, “I didn’t forward your application to the short-list because in the past, this employer has been burned by employing mature applicants”. Adam made a complaint and accepted a $1500 compensation settlement from the recruitment agent.

Do you think people are not getting the job because they are too old? What is too old? Is 60 too old? What about 50? 35?  What happened to “the best person for the job?”

A recent report by National Seniors Australia (2011), “The elephant in the room-Age discrimination in employment”, gives examples of people, including Adam, saying they were not offered a job because they were “too old” and wouldn’t “fit in with the young staff”.

Since when was growing older and “wiser” a bad thing? Some people might think that some jobs have a “use by date” and when you reach a certain age there are some jobs you should just not be doing. Other people may think that discrimination is a fact of life, it happens all the time and so what’s the big deal?!

The big deal is, age discrimination is unlawful and is protected under the law.

Unless an employer can prove that a person’s age is relevant to their ability to carry out the job, then employers or their representatives can expect a complaint from people like Adam for age discrimination and pay compensation for their unlawful behaviour.