Legal
Issue No. 58 - April/May 2011
Hazards for employers in new bullying regulation
by Andrew Wright
The Australian recently reported that workplace bullying and harassment costs Australia’s economy $15 billion a year.
The Productivity Commission has found 2.5 million Australians have experienced some aspect of bullying during their working life.
South Australia’s Occupational, Health, Safety and Welfare Act defines bullying behaviour in Section 55A, but such State and Federal legislation prohibiting inappropriate and discriminatory conduct in the workplace has had little effect in eradicating such behaviour in our work environments.
Not surprisingly then, our courts have come to the rescue with a string of recent decisions providing a common law explanation of the rights which can and may attach to work contracts.
Employers beware ‘Good Faith’
Employers should be on high alert given the recent judgement in Lennon v The State of South Australia.
After a long and protracted wait the decision announces that a work contract, no matter its shortcomings as a legal document, has an implied term of good faith and confidence built into its conditions, a concept which the United Kingdom has held dear for more than three decades.
The case highlights the premise that if an employment contract exists, there is an implied term of mutual trust and confidence within that document.
Until Lennon, employees seeking recourse for unfair dismissal were told that potential remedies were generally only available through Fair Work Australia. The best outcome for a successful litigant is six months’ salary or a return to work, with settlement often occurring at conciliation and by way of substituting a termination for a resignation, as well as a monetary settlement rarely exceeding $5000.
Essentially, the unfair dismissal arm of FWA is a ...
