Failed duty of care: management ignored noose placed above employee’s desk
Managers, supervisors and employees each have a duty of care in the workplace. This involves taking the amount of care a reasonable person would be expected to observe in relation to others (colleagues and clients) when going about their workplace duties.
Employers are required to maintain a workplace where employees are not exposed to hazards. This includes protecting team members from bullying or harassment, either from colleagues or members of the public.
A recent case before The Fair Work Commission highlights the importance of employers undertaking appropriate actions to protect their employees from workplace hazards such as bullying.
The night packer commenced employment with the chemicals manufacturer in August 2011. The employee alleges that he had raised concerns over a number of bullying incidents during his employment. One such incident including included a noose being placed above his work station. The employee advised that he informed management about this incident but no action was taken.
The employee also complained about a plant operator whom he accused of “patronising, aggressive and unreasonable behaviour”. The operator had called him a smart arse and yelled at him for not responding quickly enough to alarms and refused to provide assistance in getting raw materials when he was under pressure.
A bullying complaint later withdrawn suggested the plant operator deliberately used an air lance to flow leaked Qcel towards him. This led the employee to take evasive action to get fresh air. The Commissioner indicated that, if the claim was substantiated, it would constitute seriously dangerous and unreasonable behaviour
In June 2015 the employee requested personal leave to attend a doctor’s appointment. The employee had advised the employer he suffered from depression. Shortly afterwards, the employer advised that they were standing him down with pay for 10 days as they were concerned for his welfare as he did not seem to be coping very well at work.
The employee was subsequently advised that he could not return to work until he attended a medical examination by a doctor nominated by the employer. He was advised that this was not disciplinary action and that he had not engaged in any wrong doing but the employer was concerned that he was having problems from time to time maintaining an effective working relationship with some of his colleagues. A medical appointment was arranged by the employer for 2 July 2015.
When the employee failed to attend the medical appointment the employer advised him that he was stood down without pay.
The employee was dismissed via email effective 23 July 2015 for failing to attend the doctor’s appointment and not complying with a direction to communicate only with the Vice President of Human Resources on the issue.
The Commissioner determined that the employer must compensate the bullied employee after finding he was unfairly dismissed for failing to comply with an unreasonable request to be examined by a company-nominated doctor. The Commissioner ordered compensation of $43,900 but not reinstatement.
In considering whether bullying was a contributing factor in the dismissal being “harsh, unjust or unreasonable”, the Commissioner nominated the “failure of the employer to adequately deal with serious bullying allegations” with a particular failure to investigate a key incident that lead to the medical assessment.
The above case illustrates the importance of employers exercising their duty of care to create a safe work environment. This includes ensuring that bullying and harassment allegations are dealt with promptly and investigated thoroughly. Had the employee’s bullying allegations been thoroughly investigated this may have resulted in the employee working more cohesively with his employees. The subsequent stand down may and the associated issues may not have eventuated. This would have avoided a costly and time-consuming workplace dispute.
iHR believes that prevention is the best cure. iHR can assist with the development and design of individual policies and procedure to help employers meet their duty of care. Tailoring policies to meet an organisation’s specific needs is important as generic policies may not reflect an organisations culture and values, may be too general, or may not reflect current legislation. Well-documented policies and procedures can protect an organisation in the event of litigation as they are tangible evidence that an organisation has taken reasonable steps to minimise business risks and unlawful practice or behaviour. iHR also offers a range of workplace training solutions that can provide advice on leadership, anti-bullying and people management.
