As bullying can occur in the workplace, the operation of these laws and their consequences have the capacity to impact on employers and the way they manage employee complaints.

What is Brodie’s Law
Brodie’s Law is the name given to a set of amendments to the Crimes Act which make engaging in certain types of bulling behaviours a form of stalking. As a result, victims of bullying can apply for the same protections as if they were victims of stalking (such as intervention orders) and bullies can face the same penalties as those convicted of stalking.

Bullying as a form of stalking
It is a crime for one person to stalk another.

Stalking involves engaging in a “course of conduct” for the purposes of causing physical or mental harm to a victim or arousing apprehension or fear in the victim for their own safety or that of another.

This “course of conduct” now includes engaging in the following types of bullying behaviours:

• Making threats to the victim;
• Using abusive language or offensive words to, or in the presence of, the victim;
• Performing abusive or offensive acts in the presence of the victim;
• Directing abusive or offensive acts towards the victim.

In addition, the bullying conduct may now also amount to stalking if it causes the victim to self harm.

Intervention orders
A victim of bullying conduct can now apply for an intervention order in the Magistrates Court. A person found to have breached an intervention order can face penalties including imprisonment for a maximum period of 2 years.

How does this impact employers?
While these laws are trying to make individual bullies personally accountable for their actions, given that bullying can occur in workplaces, these laws can also have an impact on employers and how they respond to employee bullying complaints.

Positives

• The existence of these new laws can assist employers to emphasise the unacceptability of bullying behaviour, wherever it occurs;
• Bullying conduct that is occurring outside of work can now be addressed externally, taking the burden off the employers to try and manage conduct that is outside the workplace;

Negatives

• If an intervention order is obtained, then the employer may be required to facilitate the compliance of the intervention order, even if it requires reorganising certain elements of the workplace or work systems. For example: varying rosters, moving offices, changing supervisors. Taking steps with which a victim disagrees (such as relocating them and not the alleged bully) may also expose the employer to other risks.

• As these are criminal laws, workplace investigations into bullying complaints could become relevant to, and admissible in, any subsequent criminal investigations that may occur.

How you can manage these issues:

1. Remember that a bullying victim obtaining an intervention order does not replace employers’ obligations under OHS law to ensure a safe workplace and respond to OHS risks (including bullying complaints) in the workplace;
2. Always treat bullying complaints seriously;
3. Review investigation processes and procedures, including the circumstances in which an external party should be engaged to conduct an investigation; and
4. Do not hesitate to seek advice as needed.

The team at Zeitz Workplace Lawyers can assist you with any workplace issues you may have including bullying. Please do not hesitate to give Susan, Nandi, Simon or Sarah a call to discuss any of these matters further.

Disclaimer – This update is intended to provide commentary and general information only. It must not be relied upon as legal advice. Formal legal advice should be sought in relation to any matter arising out this update. 

TRA Global Pty Ltd v Kebakoska [2011] VSC 480

Facts:
Ms Kebakoska was employed by TRA Global as a National Operations Manager, earning $129,034.20 per year.

In 2008, Ms Kebakoska’s position was made redundant. The Company paid out her accrued outstanding entitlements and an amount of redundancy pay in accordance with an award.

Following the cessation of her employment, Ms Kebakoska attempted to find alternative employment but was unsuccessful. She instead applied to Centrelink for unemployment benefits.

Ms Kebakoska was told by Centrelink that she was not entitled to any benefits because she had not exhausted the funds that were paid to her in the redundancy package.

As a result, Ms Kebakoska used most of the funds from the redundancy package to support herself until she found ongoing employment.

Later, Ms Kebakoska then sued the Company for an unpaid bonus she argued she had been contractually entitled to. The Company then counter sued Ms Kebakoska claiming that it had paid her an amount of redundancy pay in error and that amount should be returned to them.

The matter was heard in the Magistrates Court and then appealed to the Supreme Court.

Relevant findings as to the overpayment:
The Supreme Court upheld the finding of the Magistrates Court that that redundancy payment had been made to Ms Kebakoska by mistake.

Even though it was a mistake, the Company could not recover the amount because Ms Kebakoska had “changed her position” in reliance on the redundancy payment. Specifically, she had used the redundancy pay to live off while she looked for another job and had, because of the redundancy pay, been denied unemployment benefits by Centrelink.

Lessons for Employers

• Actions to recover overpayments will be significantly harder if the employee/ex-employee has changed their position in reliance on the overpayment. A “change of position” may include inability to access other benefits, or the abandonment of pursuing opportunities to obtain other work.
• As soon as employers become aware of an overpayment to an employee/ex-employee they should write to them immediately and advise them of the overpayment and that they are not entitled to use it in any way. Ms Kebakoska was only told about the Company’s view that it was an overpayment when she tried to sue the Company, and not beforehand.
• Being able to demonstrate that the employee was aware that they were not entitled to use the funds may help address any claim they may later make that they relied on the funds and changed their position.

The team at Zeitz Workplace Lawyers can assist you with any workplace issues you may have including recovering overpayments. Please do not hesitate to give Susan, Nandi, Simon or Sarah a call to discuss any of these matters further.

Disclaimer – This update is intended to provide commentary and general information only. It must not be relied upon as legal advice. Formal legal advice should be sought in relation to any matter arising out of this update.

Starting in 2010, the Brumby Government introduced significant changes to the Act which were to take effect a year later. However before those changes started, the Baillieu Government was elected and passed its own set of changes to the Act, to undo some of the Brumby Government’s amendments and put in place its own changes.

This has all caused confusion over what the current state of the Act is, what it means, and how it now applies.

Below is a summary of the major changes to the Act that now apply:

1. The role of the Victorian Human Rights and Equal Opportunity Commission is to:

• Conduct dispute resolution processes for complaints that are made to it;
• In limited circumstances, the Commission can also conduct an investigation into a matter that may be in breach of the Act. Those circumstances include: the matter being serious in nature, affecting a particular class of people, and occurring in circumstances where it cannot be expected that it can be resolved by a person making an application under the Act;
• Develop guidelines on compliance with the Act and assist organisations that volunteer, to develop their own Actions Plans for compliance with the Act; and
• If first invited by an organisation, conduct a review of that organization’s compliance with the Act.

1. Imposes positive obligations on employers:

• A person must take reasonable and proportionate measures to eliminate discrimination, victimisation and sexual harassment as far as possible; and
• Employers must make reasonable adjustments to enable those with a disability (be they employees or people that have been offered employment) to adequately perform the genuine and reasonable requirements of the role.

1. A new avenue for complaints:

• A person may apply directly to VCAT in relation to a breach of the Act without having to first go through the Commission’s dispute resolution process.

1. Simplified definitions of direct and indirect discrimination:

• The new definitions are shorter and remove some threshold requirements that previously had to be made out to prove discrimination occurred. This may make it easier to prove discrimination;

1. Exceptions to discrimination:

• Religious schools are exempt from the prohibitions on discriminatory conduct provided that the discrimination is necessary to confirm with the doctrines or beliefs of the religion or is necessary to avoid injury to the religious sensibilities of adherents of the religion. There is no longer any requirement for the school to also have to prove that discriminating against a person because of the attribute is also relevant to the inherent requirements of the position or role.
• Sex discrimination in sport will be permitted if it is intended to facilitate participation in the sport and is reasonable or if it a pathway to national or international elite competitions.
• Schools are exempt from the Act to the extent that they are implementing and enforcing reasonable standards of dress appearance and behavior for their students;
• The exceptions provided for “clubs” has also been increased to include political parties and political clubs. 

The impact of these new arrangements on discrimination claims against employers is yet to be felt. However with the introduction of new laws and the new simplified meanings of discrimination generally, it is useful time to review policies and procedures to ensure employment processes are still compliant.

The team at Zeitz Workplace Lawyers can assist you with any workplace issues you may have including managing and responding to discrimination claims. Please do not hesitate to give Susan, Nandi, Simon, or Sarah a call to discuss any of these issues further.

Disclaimer – This update is intended to provide commentary and general information only. It must not be relied upon as legal advice. Formal legal advice should be sought in relation to any matter arising out of this update.