Australia to criminalise Workplace Bullying: Workplace bullies may face jail time

Workplace bullying. Picture: Nicki ConnollySource: Herald Sun

BULLIES in workplaces will face jail when the state introduces laws to criminalise bullying.

Commercial law firm Kelly & Co believes it is "only a matter of time" before legislation is introduced in South Australia to deem workplace bullying illegal.

Legislation introduced in the Victorian Parliament on April 5 means workers found guilty of bullying face up to 10 years in jail.

It followed the case of a 19-year-old Melbourne woman who committed suicide after being bullied by co-workers and her boss at a lunch bar.

The employer was fined $220,000 under occupational health and safety legislation, with four co-workers also each fined between $10,000 and $45,000.

Kelly & Co partner and workplace relations lawyer Clare Raimondo said that workplace bullies were on "borrowed time".

"There's a groundswell of support to stamp out workplace bullying in SA," Ms Raimondo said.

A spokesman for Industrial Relations minister Pat Conlon said the Government would follow the progress of the Victorian legislation "with interest".

He said it already had introduced a Bill to Parliament in which the maximum penalty for an offence such as proven recklessness included five years imprisonment.

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PAPER - AUSTRALIA: Casual approach to the academic workforce

The response of Australian academics to the Changing Academic Profession survey indicates that they are among the least satisfied academics in the world. This dissatisfaction has been expressed after two decades of rapid growth in the student body and structural changes in the academic workforce, particularly an expansion in the amount of teaching provided by casual staff. Growth in casual staff numbers is a factor that has simultaneously created a precariously employed but cheaper and more flexible workforce along with higher levels of stress among the full-time teachers responsible for managing and supervising casual teachers.

The academic profession has an important role to play in creating a highly educated workforce for Australia and in generating export income by teaching international students. Careful attention needs to be paid to this situation, especially in light of the need to replenish the ageing academic workforce.

To see the four figures mentioned in the following text, it is necessary to purchase the paper from the centre.

Introduction

The Australian university system has grown considerably over the last two decades. The so-called massification [1] of Australian higher education, the result of policies introduced by education minister John Dawkins in the 1980s, saw a large increase in the university student population. Between 1989 and 2007, the number of students enrolled in courses at Australian universities increased from 441,000 to over one million.

In the last couple of years, movement from a mass to a universal system [2] has been initiated following recent growth plans announced for Australia's higher education sector [3]. These reforms have set a target of 40% of Australia's 25 to 34 year old age group attaining a bachelor degree by 2025.

Yet staff numbers, and particularly teaching staff numbers, have failed to keep pace with growth in student enrolments. For the purposes of this paper, 'teaching staff' include staff in academic positions classified by their universities as either 'teaching only' or 'teaching and research' staff, and working in academic departments. 'Research only' academics and academics who work outside academic departments have not been counted as 'teaching staff'.

Figure 1 has been constructed from national higher education statistics [4]. It compares the increase in the number of equivalent full-time students and teaching staff, and the extent of the widening gap between student and staff numbers is plain. Numbers have been expressed as 'full-time equivalent' (FTE) in order to control for students or staff who attend or work less than full-time, such as part-time students or casual staff. Between 1989 and 2007, there was an increase of about 376,000 full-time equivalent students, from about 350,000 to nearly 726,000 in 2007 (including around 197,000 international students). This is an increase of about 107%.

In the same period teaching staff increased by about 8,400 from 25,060 full-time equivalent staff in 1989 to 33,496 in 2007, an increase of about 34%. These figures include all teaching staff, including those employed under casual contracts. On top of the number of teaching academics, universities had about 9,850 non-teaching academic staff in 2007, including about 9,200 research only staff and about 660 full-time equivalent academic staff working in support and central administration departments.

The lag in the increase in teaching staff numbers has led to an increase in the ratio of students to teaching staff from almost 14 per teacher to nearly 22, even when casual staff are included. Of course, this carries implications not just for students but also for the way in which academics experience their work environment and the way in which institutions are managed in a rapidly changing environment.

The academy's changing structure

It is clear from Figure 1 that the somewhat flat growth in staff numbers has been far exceeded by the growth in the size of the student body. However, there has also been a change in the composition of the teaching body, particularly relating to its members' contractual arrangements with universities.

Figure 2 shows the size of the university teaching staff between 1989 and 2007 and the proportions with continuing appointments (including those on probation and those with confirmed appointments), those with time-limited appointments (reported by universities according to the number of months of the contract term), and those who were casually (sometimes called 'sessionally') employed.

As can be seen, casual staff have provided the majority of the growth in teaching staff. All in all, since 1989 the number of university teachers increased by 8,435 FTE, of which more than half were casual staff. Casual staff numbers increased from 3,162 to 7,440, about 135%. Further, as a proportion of all teaching staff, casual staff have increased from 12.6% of the total in 1989 to 22.2% in 2007. The 20% threshold was crossed in 1999.

By contrast, the proportion of continuing staff decreased from 63.6% to 59.3%, and the proportion of contract positions decreased from 23.8% to 18.5%. The shift from contract to continuing appointments from 1998 to around 2005 reflects the establishment and subsequent disestablishment of the Higher Education Conditions of Employment (HECE) Award. Notably, this did not reduce the expansion of FTE numbers of staff employed casually.

In summary, between 1989 and 2007, student numbers more than doubled during a period in which the number of teaching staff other than casuals increased by only 19%, and the overall student to teacher ration blew out from 14:1 to 22:1.

The influences of casualisation

The above analysis outlined how the teaching academic workforce has failed to keep up with growth in student numbers. To the extent that there has been growth in teaching staff numbers, the main response from institutions over the last decade has been through a consistent casualisation of the academic workforce. Discussions of casualisation generally focus on casually-employed staff, and studies have examined issues from this perspective. However, casualisation itself is not the main focus of this paper, but rather the perceptions of academic staff about how changes in the academic profession have affected them.

The Australian Bureau of Statistics (ABS) in its 2009 report Measures of Australia's Progress shows that the casual staff issue in the university sector cannot be isolated from broader trends in Australian society [5]. The report provides an analysis of changes in work conditions over time, noting the strong growth in the number of casual employees over the last two decades. The ABS also notes that the pace of change has slowed in recent years and based on a comparison with higher education casual staff statistics, it would seem that the overall proportion of casual staff has levelled out earlier in the university sector than in the workplace overall [6].

However, structural changes in the academic workplace should be considered. In fact, much of the teaching in the modern university is now provided by casual staff. Percy et al have noted that "sessional teachers are the hidden part of the massification that has taken place in higher education in Australia over the last 30 years...Between 40 and 50% of teaching in Australian higher education is currently done by sessional staff" [7].

Even though the ABS notes that the increase in casualisation is seen by many employers and employees as being a beneficial thing, this view does not match the debate on the subject within the university sector. According to the ABS report, some employees (women and the young in particular) welcome the flexibility brought by casual employment [8]. However, many casual staff could be placed in the category of aspiring academics and most desire full-time (preferably continuing) positions. In response to a direct question on the preference for casual appointments in her study on casual staff in universities, Junor found that only 28% of casual academics said that this mode of employment was their first choice [9].

Although casual employment means under-employment or precarious employment for many staff, this is not universally the case. Using the typology outlined by Gappa and Leslie, the casual academic workforce also includes people doing sessional teaching as an extension of their regular professional life, and retired full-time academics eager to keep their hand in and make a contribution [10].

From the perspective of both continuing and contract staff and casual staff, Lazarsfeld-Jensen and Morgan offer a very pertinent comment:

"Casualisation has a profound impact on tenured staff. They must recruit and manage teachers who in turn have no access to training or support, and whose role is constrained by a minimalist contract system. Last minute recruitment was often based on prior relationships, which casuals felt opened them up to excessive demands and bullying because of their financial vulnerability. There is insecurity on both sides with neither feeling able to create parameters for the relationship or the work. It is not unusual for a full time academic to work exclusively with casuals, and for casuals to have no relationships within the university beyond their immediate supervisor and the person who handles their pay [11]."

The CAP survey and job satisfaction

The essence of this paper is that Australian academics are less positive about their profession than before. This information comes from the Changing Academic Profession (CAP) survey, an international survey conducted in 25 countries in 2007. CAP is the largest such research project conducted to date. CAP data provide the context for assessing the attractiveness of the academic profession in Australia as well as offering an international angle, which is important given the highly internationalised and mobile nature of academic work. The International Centre for Higher Education Research (INCHER) at the University of Kassel in Germany is coordinating the construction of the international database.

Using a common questionnaire, population definition and sampling approach, CAP sought the opinions of academics in each participating country. A total of 1,370 valid responses were received from full-time and fractional full-time academics at 20 Australian universities, that is from staff on both continuing and contract appointments but not from casuals.

According to the CAP survey, with the exception of academics from the United Kingdom, Australian academics are the least job-satisfied of all. This paper examines Australian responses relating to overall job satisfaction and compares them with responses from 18 of the 25 participating countries that had supplied data at the time of writing. The paper contends that in the Australian context, the additional burdens imposed by a much larger university sector, and increased workloads generated for permanent staff through casualisation, is a major contributing factor.

Figure 3 provides mean scores of a composite scale consisting of items measuring satisfaction with academic work, relating to several questions on the CAP survey. These questions address respondents' sense of personal strain; whether they would become an academic if they had their time over again; their perception of whether now would be a good time for a young person to enter academia; and their overall satisfaction with their current job. Respondents reported their perceptions on a five-point Likert scale, from 1 (very dissatisfied) to 5 (very satisfied).

Australia sits in a group with Portugal and China on the low end of the satisfaction scale. Only UK academics reported lower levels of satisfaction. Australia is considerably below the overall mean for all countries. Academics from Mexico reported the highest levels of job satisfaction.

Perhaps another telling perception of Australian academics was that they believed that things had got worse. In response to a question about changes in working conditions, 64% of Australian respondents believed that things had deteriorated or very much deteriorated [12]. This response was topped only by academics from the UK, of whom 68% thought that their situation had deteriorated [13]. Other high-scoring nations on this question were Japan and Italy, where 63 and 56% of academics, respectively, reported that there had been a deterioration in working conditions [14].

At the other of the scale, only 9% of Australian academics thought that working conditions had improved or very much improved. This was the lowest result of any nation in the CAP survey. Even 15% of British academics thought that working conditions had improved since they'd started their career [15].

The literature summarised by Long [16] suggests that job satisfaction is critical to an individual's overall well-being, and it also has important implications for organisational productivity and performance. A positive experience of work is important from both the individual's and organisation's perspectives.

Studies have also indicated a U-shaped relationship between job satisfaction and age. Younger and older groups in the academic workforce perceive their work more positively than do the groups in between and there is a negative relationship between higher levels of education and satisfaction with work. This relationship, however, essentially disappears if the level of education is in line with the knowledge and skills required for the job, that is, if people are not over-educated for their job.

Crucially, dissatisfaction has been articulated by the new generation as shown in Figure 4, assuming that junior ranks provide a reasonable proxy for age. Academics in lower ranks (that is, assistant lecturers and lecturers) and middle ranks (senior lecturers) report lower satisfaction than those in the upper ranks (associate professors and professors).

This perception has been matched in other studies. For example, interviews with postgraduate research students and early career researchers in the field of science and mathematics undertaken by Edwards and Smith also found perceptions of an increasingly unmanageable workload being absorbed by academics at all levels [17]. With the increasing need to juggle teaching, research and administrative duties (see also Lazarsfeld-Jensen and Morgan) [18], the desirability of the academic profession is waning at a time when the need to attract young people to this work has never been more acute.

Other research has found that academics increasingly find themselves on a 'post doc treadmill', perhaps an indication that the post doctoral pathway no longer represents a stepping stone into continuing academic positions to the extent that it once did. The relative decline in the number of continuing positions in universities is a prime reason for this situation. Views of this type are supported by research in Australia [19] and elsewhere in the world [20] especially in relation to the sciences. According to this literature, if the increase in short-term academic positions continues, it is likely that many young researchers will be discouraged from following an academic career.

Discussion

Academia in Australia, it appears, is not the most satisfying workplace when compared to higher education systems elsewhere. While links between job satisfaction and other facets of people's work are complex, the results set out above do not bode well for the academic profession in Australia, or for universities themselves.

This presents a two-sided problem. On the one hand, if casual staff are providing up to half of university teaching [21], a potential quality issue arises. If universities' main business is handled by its least-connected workforce segment, a lot could be at stake. Consistency is more difficult to achieve if teaching in individual subjects is split between several individuals, many of whom might not be present in the teaching department other than at class time. On the other hand, the coordination required by this model increases the pressure on the permanent academic staff member responsible for subject management and casual staff supervision.

Fees (predominantly tuition fees) paid by both domestic and overseas students provided universities with more than one-third of total university revenue in 2007 (including HECS-Help and Fee-Help loans) [22]. Yet, to what extent do students get value for money in terms of access to Australia's core and leading academics?

Overall, student evaluations such as through the Course Experience Questionnaire do not suggest an imminent problem, although international benchmarking through the Australasian Survey of Student Engagement [23] exposes several key areas of apparent risk. But there might well be a problem looming. Hugo has calculated that universities are likely to lose between a fifth and a third of their staff in the next decade or so [24]. Extrapolating from Hugo's figures, some 50% of our senior academics will retire over the next decade.

Australia is not unique in this respect, as most developed economies will see a comparable exodus from their academic workforce. This alone will increase the global competition for the best and the brightest. And as argued above, based on the results of the CAP survey, Australia is not in an enviable position compared to most of our direct competitor systems if one subscribes to the notion that job satisfaction is an important indicator of the attractiveness of a system. All of this leaves aside the challenges that the government's ambitious goals for increases in participation pose: who will be teaching all these new students?

To date, the principal response from university managements has been to appoint more casual staff, thereby increasing the squeeze on continuing staff. This may be understandable in the face of the harsh financial climate which universities continue to face. But it is not a response that can be sustained over time.

The retirement projections can be seen as a problem if the academic profession is being perceived as relatively unattractive by the next generation. They can also be seen as a massive opportunity to reshape career trajectories and reinvigorate the profession if a more proactive stance is taken by universities. Crucial ingredients in this are increased flexibility in employment arrangements to facilitate female participation in the academic workforce, a further expansion of post-doctoral positions, and a stronger focus on the teaching function itself through enhanced training and support for those at the coalface.

All the indications are that academic work is now perceived as being less likely to lead to a real career than in the past. That this is happening at the same time as student numbers are growing and as academics on continuing appointments age presents a serious problem.

* Hamish Coates is principal research fellow at the Australian Council for Educational Research; Ian R Dobson is an honorary research fellow at the Centre for Population and Urban Research at Monash University in Melbourne; and Lyn Meek is director and Leo Goedegbure deputy director of the LH Martin Institute at the University of Melbourne.

* "Australia's Casual Approach to its Academic Teaching Workforce" is published in the latest edition of the journal People and Place, produced by the Centre for Population and Urban Research at Monash University in Melbourne. It is republished with permission.


References

1- M. Trow, 'From mass higher education to universal access: the American advantage', Research and Occasional Paper Series, CSHE.1.00 Berkeley, Center for Studies in Higher Education, 2000. Trow's theoretical perspective was that massification has occurred in a higher education system once higher education is seen as a right among many classes of society, not just the elite. Higher education starts to become universal once access is possible for 50% or more of the appropriate age cohorts of the population.
2- Ibid.
3- D. Bradley, P. Noonan, H. Nugent and B. Scales, Review of Higher Education in Australia: Final Report. Canberra, Australian Government, 2008; Department of Education, Employment and Workplace Relations (DEEWR), Transforming Australia's Higher Education System, Canberra, DEEWR, 2009.
4- Higher Education Staff Collection, Canberra: DEEWR, various years.
5- ABS, Measures of Australia's Progress, 2009 accessed 6 December 2009 at: betaworks.abs.gov.au
6- Ibid.
7- A. Percy, M Scoufis, S.Parry, A. Goody, M. Hicks, I. Macdonald, K. Martinez, N. Szorenyi-Reischl, Y. Ryan, S. Wills and L. Sheridan, The RED report: recognition o enhancement o development: the contribution of sessional teachers to higher education', Australia Learning and Teaching Council (ALTC), Canberra, 2008. p 3.
8- Ibid.
9- A. Junor, 'Casual university work: choice risk and equity and the case for regulation', The Economics and Labour Review, vol. 14, no. 2, 2004, pp. 276-304.
10- J. Gappa and D. Leslie, 'The invisible faculty: improving the status of part-timers in higher education', 1993 Jossey-Bass, Hobeken, NJ, USA.
11- A. Lazarsfeld Jensen and K. Morgan, 'Overload: the role of work-volume escalation and micro-management of academic work patterns in loss of morale and collegiality at UWS: The way forward', South Melbourne, National Tertiary Education Union, 2009, p. 54.
12- INCHER (International Centre of Higher education Research), The Changing Academic Profession (CAP), Tables by Country (0) - Unweighted Data Table 52. University of Kassel, Germany Accessed September 2009 at www.uni-kassel.de.
13- Ibid.
14- Ibid.
15- Ibid.
16- A. Long, 'Happily ever after? A study of job satisfaction in Australia',The Economic Record, vol. 81, no. 255, 2005, pp. 303-321.
17- D. Edwards and T.F. Smith, Consultation Report: Supply, demand and approaches to employment by people with postgraduate research qualifications in science and mathematics', Canberra, DEEWR, 2008.
18- Lazarsfeld-Jensen and Morgan, 2009, op. cit.
19- Edwards and Smith, 2008, op. cit; D. Edwards and T.F. Smith, 'Literature review and data analysis, supply, demand and approaches to employment by people with postgraduate research qualifications in science and mathematics', Canberra, DEEWR, 2008; G. Laudel and J. Glaser, 'From apprentice to colleague: the metamorphosis of early career researchers', Higher Education: The International Journal of Higher Education and Educational Planning, vol. 55, no. 3, 2008, p. 387; C. McInnis, R. Hartley and M. Anderson, What did you do with your science degree? A national study of employment outcomes for science degree holders 1990-2000, Parkville, Australian Council of Deans of Science, 2001.
20- N. Dawson, 'Post postdoc: are new scientists prepared for the real world?' Bioscience, vol. 57, no. 16, 2007; J. Glanz, 'Young physicists despair of tenured jobs', Science, vol. 279, no. 5354, 1998, p. 1128; J. Huisman, E. de Weert and J. Bartelse, 'Academic careers from a European perspective, Journal of Higher Education, vol. 73, no. 1, 2002, pp. 141-160; C.B. Leggon, 'The scientist as academic', American Academic Profession, vol. 221, 2001; R. McGinnis, P.D. Allison and J.S. Long. 'Postdoctoral training in bioscience: allocation and outcomes',Social Forces, vol. 60, no. 3, 1982, pp. 701-722; R. Monastersky, 'The real science crisis: bleak prospects for young researchers', Chronicle of Higher Education, vol. 54, no. 4, 2007.
21- A. Percy, M Scoufis, S.Parry, A. Goody, M. Hicks, I. Macdonald, K. Martinez, N. Szorenyi-Reischl, Y. Ryan, S. Wills and L. Sheridan, 'The RED report: recognition o enhancement o development. The contribution of sessional teachers to higher education. ALTC Canberra, 2008.
22- Department of Education, Science and Training (DEST), Adjusted financial statements for higher education providers as listed in the Higher Education Support Act 2003 for the 2007 reporting period, 2008,www.dest.gov.au accessed 19 November 2009.
23- H. Coates, 'Development of the Australasian survey of student engagement (AUSSE)', Higher Education, 2009.
24- G. Hugo, 'The demographic outlook for Australian universities' academic staff', CHASS occasional paper no. 6, Adelaide, Council for Humanities, Arts and Social Sciences (CHASS), 2008.

COMMENT:

Interesting article and findings. We in Malaysia had also embarked on a project to look at what it takes to make an academician feel appreciated or we prefer to call it "the feel good factor". Was just wondering if we could embark on an international project to create a "feel good index" for academics.

Yang Farina

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CEO's on notice over Bullying & Harassment - Burnside CEO who quit over handling bullying claim against a councillor 'retracts' resignation

Two Bullying and Harassment stories in one day from Adelaide!

...........................BUT !!!!!!!!!!!!!!

The fall out has just begun.

As reported on June 23, 2009 12:01am

THE chief executive officer who quit Burnside council last week over the handling of a bullying allegation has retracted his resignation, The Advertiser has been told.

Neil Jacobs tendered his resignation to Mayor Wendy Greiner earlier this month, saying he could no longer guarantee a workplace free from harassment.

A special meeting was held last week where several councillors requested Mr Jacobs remain in the position and gave him yesterday as the deadline to reconsider.

The Advertiser understands Mr Jacobs emailed councillors about 5pm yesterday asking that he be retained as the council's senior bureaucrat.

"I withdraw notice of my resignation," Mr Jacobs wrote. "The council should seek advice on the due process."

Mr Jacobs said that, if requested, he would submit a confidential statutory declaration outlining the harassment claim that sparked his resignation.

A special meeting will be held tonight to allow the council to respond to Mr Jacobs' request.

But doubts have already been raised about whether he can legally remain in the job.

A council source last night told The Advertiser they believed the CEO must seek re-appointment and be offered a fresh contract.

Mr Jacobs could not be contacted for comment last night.

Burnside Mayor Wendy Greiner did not return calls.

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.... then overnight breaking story...as there is doubt !?!

Doubt over Burnside CEO's return

As reported on June 24, 2009 12:01am

BURNSIDE council has supported CEO Neil Jacobs' attempt to retain his job despite claims from its own members the move breaches of state law.

Mr Jacobs handed his resignation to Mayor Wendy Greiner earlier this month after a dispute over the handling of a bullying claim levelled against a councillor.

At a hastily-convened special meeting last night, a divided council voted to accept a request from Mr Jacobs to retract the resignation.

But Councillor Rob Gilbert says independent legal advice sought by him shows the move is illegal and the CEO must re-apply for his own job and face opposition from rival candidates.

Speaking to AdelaideNow last night, Ms Greiner confirmed the majority of councillors wanted Mr Jacobs to remain in the job.

She also said she was confident the move was legal.

`'Most definitely yes, the CEO's contract of employment continues uninterrupted without any effect on his continuity of employment," she said.

"The council accepted the CEO's withdrawal of notice of resignation and affirmed its continuing confidence in the CEO."

But Mr Gilbert says his own advice, from Grope Hamilton Lawyers, cast doubts.

In a copy supplied to AdelaideNow, lawyer John Danvers says Mr Jacobs officially resigned on June 12 when he handed his letter to the mayor.

"Now that Mr Jacobs has resigned ... it is not open to Mr Jacobs to withdraw his resignation, whether at the request of council or otherwise," Mr Danvers writes.

It is understood an argument between Mr Jacobs and Ms Greiner argued over the handling of a harassment allegation sparked his resignation.

In his resignation letter, Mr Jacobs said he found it "impossible to condone actions which potentially compromise my responsibility to provide a safe workplace free from harassment and bullying".

In an email to councillors on June 15, Mr Jacobs said he would only remain in the position until August and urged all staff to "promote a safe workplace free from harassment and bullying".

"I wish to pursue other more enjoyable, uplifting, exciting, challenging, and fulfilling opportunities, and have resigned," he wrote.

Democrats MLC David Winderlich has raised the council's disfunction in Parliament and asked State/Local Government Relation Minister Gail Gago to investigate a string of complaints.

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LEGAL - What are your options if you are being bullied and harassed?

You are being bullied at work- what are your options?

By Corinne Day There is an implied duty on your employer to treat you, as their employee, with respect. However, if an employer commits a breach of this duty, you will be able to treat your contract of employment as breached and you will be able to resign. As you long as you resign within a reasonable time, you may be able to claim for damages, on the grounds that you have been 'wrongfully dismissed' and / or 'unfairly dismissed' at an employment tribunal. In such circumstances your resignation would be known as a 'constructive dismissal'. However, you must be able to show that your employer's conduct (or a person working for the employer) was serious enough to merit you resigning. You must be able to show that you had no other choice but to resign. Your resignation need not be based on one serious incident, and you may also be able to rely on the cumulative effect of any bullying / harassment / criticism you have faced from your employer. You will be able to claim damages in an Employment tribunal as a result of your constructive dismissal. If you are successful you may be entitled to receive both a basic and a compensatory award of damages. Corinne Day is a trainee solicitor who specialises in information technology law and intellectual property law. She can be contacted via e-mail on corinne.day@lawdit.co.uk

HR failing in Duty Of Care + Management failure in Duty of Care = Company fails Duty of Care

It is February Freeze in the Northern Hemisphere, whilst heating up for the usual February Frazzle in the south. Though this picture reminds me of the lengths one has to go to in alerting management and Human Resources to bullying, harassment and mobbing, all which violate OHS laws and company obligations.

It ceases to surprise me the complacent attitude and inept ability to immediately act by 'at least' putting into action their own company procedures - off the back of their own company policies that they themselves are meant to enforce.

Following on from the infamous Nikolich v Goldman Sachs J B Were case, though it seems there are still employers out there continuing to violate workplace agreements, company policies, floundering in failed process.

Seemling HR, Management and companies continue to show a frosty shoulder to it's valued employees.

The following are two recent cases (one settled, one in infancy) in Victoria and Queensland that demonstrate ongoing ineffectiveness of Management and HR to deal with Bullying and Harassment, and failing to protect the victim (aka Target), to the point that Workers Compensation and legal action is taken by the victim for respite and justice. All which can be avoided by understanding nature of Harassment and Bullying, and immediately taking action to nip it in the bud, and show clear protection and support to the victim.

VICTORIA

Compo payout for former Hepburn Shire Council receptionist

A FORMER Hepburn Shire Council receptionist who alleged she was the victim of workplace bullying will receive compensation including medical costs.

The compensation for an unknown amount follows a hearing in Ballarat Magistrates Court last December 2008.

In the case's recently published judgment Magistrate Brian Wright said he believed there had been a basis for criticism of Ms Haintz's work performance but the issues did not appear to have been properly handled by the shire.

"It is not for me to formally determine whether she was in fact harassed or bullied," he said.

The court had heard Ms Haintz had worked for the shire for 18 years, but experienced problems when she transferred jobs in 2006.

Ms Haintz said she was harassed and bullied by her two supervisors Katherine Atwood and Linda Campbell.

Mr Wright said Ms Haintz was issued with a "performance expectation" letter in November 24, 2006 and in response she lodged a grievance notice which the shire did not acknowledge.

"For whatever reason, the issues as to Ms Haintz's work performance and the grievance issue was allowed to fester for six months until about June 2007," Mr Wright said.

During 2007, Ms Haintz became distressed, feared going to work and would vomit with anxiety every morning, the court heard.

"Of all the evidence I have no doubt that Ms Haintz did suffer a work-related injury, being anxiety and depression, and that injury arose out of or in the course of her employment with the shire," Mr Wright said.

Mr Wright ordered that Ms Haintz be entitled to weekly payments at the "no current work" capacity rate from June 20 2007 to February 1 2008 and payments at the current work capacity thereafter.


QUEENSLAND

Workmates put drugs in my car $345,000 claim for making work life 'hell'

FORMER manager Rochelle Yvette Jupp is suing Rockhampton Regional Council for $345,000, claiming a small number of staff went out of their way to make her life hell.

Her allegations include, among other things, someone conspiring to plant drugs in her vehicle for the authorities to find.

The former ranger services manager at Fitzroy Shire Council lodged a claim last week in the Supreme Court, Rockhampton, alleging her employer failed to protect her against the abuse and provide a safe workplace.

Outlining the level of degradation, she claims in the court document that between March 2005 and February 2006, she was subjected from fellow employees to open hostility, disrespect, disregard of her leadership, denigration to members of the public, false late-night call-outs, a conspiracy to sabotage a presentation she was to make, and a conspiracy to place illegal drugs in her vehicle that would be discovered by authorities.

She also said workers stared at her in an intimidating manner in a way she perceived as sexually harassing.

These all combined to cause her to suffer an adjustment disorder and anxiety which developed into a major depressive disorder.

Ms Jupp claims council ignored her pleas for help.

They failed “to provide any adequate response to complaints by the plaintiff from time to time of difficulties encountered in carrying out her duties”.

It was also alleged council failed on her appointment to devise and implement an adequate management change program when it should have been known staff were unprepared to support her.

Her claim says she has been unable to return to her former employer as a manager or continue in her chosen field of employment, in which she holds university level qualifications.

The $345,428.65 claim includes $200,000 for future economic loss and $60,000 for pain and suffering.

________________________________________________

After reading these stories what strikes you is the blantant obvious nature of the complaint, and in some instances you can read between the lines to see it is clear sometimes the situations and unacceptable behaviour is condoned, encouraged and left to fester.

As they say, it is easier to get rid of the victim than the psychopath. Let's all close our eyes and hope the victim goes away. This is unacceptable, and it is evident that victims are becoming stronger to take their cases to court, to excersice their rights and deal with it outside airing dirty laundry in public, presenting toxic workplaces for what they are,. finding logic, reason and most of all empathy from a Judge!

LEGAL - Sexual harassment preventative strategies: Compliance obligations do not end on induction

Key Points:
To a large extent, a compliance program's robustness depends on the quality of content and delivery of relevant policies and procedures, staff training and follow up on compliance behaviour and benchmarking.

What are "reasonable steps"?

In the Australian environment there is no prescriptive formula or prescribed steps which an employer must take to discharge its obligations to prevent sexual harassment in the workplace. Anti-discrimination laws simply provide that for an employer to escape vicarious liability for sexual harassment, an employer must have taken all reasonable steps or precautions to have prevented the harassment from occurring.

Various case authorities have however examined what is required to discharge the onus to take all reasonable steps or precautions. In this regard, courts have examined what are reasonable steps or precautions on a case by case basis. From this, some common themes have emerged:

• Employers should have a clearly articulated policy on sexual harassment which identifies what is appropriate and what is not appropriate conduct.
• Importantly, the policy must be actively enforced rather than being a mere "paper policy". Accordingly, there should be a grievance procedure by which staff with concerns can raise issues and when raised these should be addressed appropriately.
• In addition to any policies and procedures, employers should provide appropriate training to its staff to make clear the expectations and consequence of any failure to comply with those expectations.

The case authorities also suggest that what lengths a larger employer might have to go to, to satisfy having taken ‘reasonable steps’ is not the same as that for a smaller employer.

For example, in a decision of Federal Magistrate Driver of the Federal Magistrates Court in Johanson v Blackledge [2001] FMCA 6 it was held that the size of the employer is relevant to determining whether the particular steps taken by an employer are reasonable in the circumstances. In this respect Driver FM stated:

"(I)t would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. This defence has been interpreted in Australia as requiring the employer or principal to take some steps, the precise nature of which will be different according to the circumstances of the employer".

In another decision of the Federal Court, Justice Wilcox, in Gilroy v Angelov [2000] FCA 1775 stated that while the law does not distinguish between small and large employers, small employers should at least adopt a process of preparing a "brief document pointing out the nature of sexual harassment, the sanctions that attach to it and the course that ought to be followed by any employee who feels sexually harassed" and that it be provided to staff on commencement of employment and routinely.

Justice Wilcox also suggested that larger employers have a higher onus to discharge observing that they have the benefit of "skilled human resources personnel and formal training procedures".

Is greater precision needed?

In light of the case authorities, when can an employer be comfortably satisfied that it has met its obligations to prevent sexual harassment and, therefore, discharged the onus to take "reasonable steps". Certainly, just having a policy will not be enough – especially if the content of the policy is deficient. Neither will once-off training which takes place at induction but is never delivered again. Ultimately, the test in all practical terms is to what extent an employer’s program delivers on compliance behaviour. This comes down to getting the content right, ensuring that the delivery of the message is provided with requisite seriousness, monitoring ongoing compliance and reinforcing expectations routinely.

Interestingly, in the United States, and in particular, in the state of California, there has been sufficient interest to regulate how compliance training is in fact developed, delivered and benchmarked. In an unusual development, expected new regulations will set out strict requirements regarding the nature and content of such training.

California's expected regulations will apply to businesses with 50 or more employees which carry on business in California. These businesses will be required to train all supervisors who are resident in California in accordance with the following guidelines:

• Training must be interactive - employees must be asked questions to assess their understanding of content learned, and they must be able to ask questions and receive replies within 48 hours. This training can be internet or computer based.
• Trainers must be experienced lawyers, HR professionals or university instructors. In the case of internet training, trainers must both develop the content of the training program, and promptly respond to any questions from employees.
• Training must take at least two hours to complete.
• Training compliance records must be retained for at least two years
• Each supervisor must receive training every two years, and new supervisors must be trained within six months of becoming a supervisor.

Training must also examine the following content:

• defining sexual harassment and other types of harassment
• assessing the effect of harassment on victims
• analysing sexual harassment prevention strategies, avenues for investigating complaints and remedies, using practical examples.

The future?

While Australia is still some way off the Californian model, the developments in the United States does pose some interesting questions for the Australian legal framework and how compliance training is approached here at home.

Nowadays, most large employers at least have a policy dealing with sexual harassment (if not anti-discrimination and appropriate workplace conduct). Most large employers also provide for staff training on such policies.

In the absence of a prescribed "suite" of steps which an employer must take to satisfy that it has taken "reasonable steps or precautions", however, employers should audit their diversity compliance programs to ensure that they provide the best make-up to prevent and resist vicarious liability for legal claims. To a large extent, whether a compliance program is adequately robust will depend on the quality of content and delivery of relevant policies and procedures, staff training (to general staff, managers and senior management) and follow up on compliance behaviour and benchmarking.

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