Dear Customer, your brief concerns a performance improvement plan that has failed and the potential claim of seeking legal action for being traumatised in the workplace.
I advise your matter has the indication of workplace bullying.
Workplace bullying is a problem in our society, and the concerns are not just with physical risks, it also extends to mental health and well being of the victim. No body wants to be called a victim of workplace bullying, because when such allegations are raised by an employee against the employer or co-worker, the employee is usually alienated from the group environment of the employees and stands alone.
There have been a number of recent prosecutions for workplace bullying, which have been incidents of severe bullying. The usual circumstance of bullying is where the employee is being taunted by co-workers or management, harassed or even attacked. As example in R v Map Foundation (2010) a young waitress who was bullied in the workplace at Cafe Vamp in Melbourne, committed suicide as a consequence.
Bullying has been addressed by legislation, such as the Fair Work Act 2009, Fair Work Amendment Act 2013, and the states have addressed bullying through legislation, such as in Victoria, where bullying has been expressed in the Crimes Amendment (Bullying) Act 2011
Under section 789FD(1) of the Fair Work Act 2009 bullying has been defined to mean repeated and unreasonable behaviour, directed towards a worker or group of workers, that creates a risk to health and safety while the claiming party is employed and at work. The term work can be at the physical place of work, such as an office, or other location which is work related, which as example, could be driving between office locations and the offence of bullying then occurring in the vehicle. However, it is noted that under section 789FF(1) of the Fair Work Act 2009, orders can be made to prevent further bullying occurring.
Where an employer has failed to prevent bullying occurring in the workplace, the victims of such crime may sue their employer at common law for negligence. The employer has a duty of care to take reasonable precautions to prevent employees being at risk of injury. This duty of care is a term implied into the employment contract, and also through the law of tort. Therefore, if an employer is found to have breached their duty of care to the employee by failing to provide a safe place of work, the employee may sue for damages in either breach of contract, or in negligence.
Each case of bullying is assessed on its merits, which is based on the supporting evidence in respect to the claim raised. Generally, the court in assessing a bullying claim, will first consider whether a person in the employers position would have foreseen the risk of injury to the employee. If risk is foreseeable in relation to injury or illness to the employee that has been bullied, then the next question raised by the court, is what a reasonable person would do in the employer’s position to limit that risk.
Where an employee claims a breach of contract by the employer for failing to prevent an action of bullying, the employee needs to establish that their injury sustained was caused by the breach of the employer, and it was not too remote. This will of course be difficult, when there are multiple factors involved.
In Balthazaar v Department of Human Services (Cth) (2014), a carer claimed that members of a Centrelink office were bullying and harassing him, and the carer sought an anti-bullying order to stop it. The carer claimed that he was an employee, who received a carer’s pension for the care of his daughter under the Social Security Act 1991 (Cth).
The question before the court, was whether the carer was an employee under the Fair Work Act.
The court held the carer was not an employee under the Act and was classified as a parent not an employee off Centrelink. And as a consequence, the carer could not bring a claim of bullying under the Fair Work Act against the employees of Centrelink.
The point of this case, is that if a person wants to bring a claim of bullying, that person needs to be an employee of the business or company upon which the claim is raised against.
Then in Bowker v DP World Melbourne Ltd , a number of employees raised a claim that Facebook posts about them were a form of bullying under the Fair Work Act. The employer argued that the Facebook posts were outside the definition of employment, and were of a private nature and did not apply to the provisions of the Act for workplace bullying.
The question for the court, was whether the Facebook posts made outside of working hours were bullying under the Act.
The court held that employees may commit bullying when they are not at the workplace, and if the act in question is sufficiently connected to their work. The court explained by example, that a telephone conversation between a supervisor and an employee outside of work hours would constitute work when work activities are discussed.
The court noted that Facebook and other electronic activities, that are not work required or related, have a degree of privacy. However, if a post is made on a Facebook page after working hours that relates to the workplace, and can be accessed and viewed by employees of the workplace during and after working hours may constitute bullying under the Fair Work Act.
The main point of this case in current society, is that any social media forum that is used to communicate matters that are related to the workplace require careful consideration before such content is posted online.
Bullying in the workplace is wrong, and where an employee wants to raise a claim against co-workers or the employer, that employee needs to establish that there was injury or illness caused to them. The evidence that is required to support the claim can be difficult to prove, and it is prudent to obtain legal advice in advance before raising allegations.
Your next course of action is to discuss your matter in detail with a solicitor. I can assist you further if needed, please select the appropriate service option on your screen.