Workplace tug-of-war

Gadens Lawyers workplace relations partner John-Anthony Hodgens says employees are more ready and willing to take action against their bosses and one another than was the case before the global economic crisis.

“I have seen a spike in conflict post and during the GFC,” Hodgens says.

“The FWA increased employee rights fairly significantly so employees are more willing to stand up for themselves than ever before.

“We now have a general protection provision in the FWA which basically allows an employee to apply for a restraining order or compensation if he or she feels the employer acts in a way that infringes their workplace rights.

“Employees are using it as a way to defeat legitimate – and not so legitimate – performance management reviews where they sometimes feel aggrieved, bullied or harassed.”

The rise in disputes is reflected in the increased use of mediation and other alternative dispute resolution methods with employers eager to nip problems in the bud rather than wait for them to blow up and go before courts or tribunals.

Australian Business Lawyers partner Siobhan Flores-Walsh says large employers are intervening in workplace conflict much earlier than they did two to three years ago.

“This is in part due to greater awareness about bullying in the workplace and the legal liability that will accrue to an employer who fails to take action,” Flores-Walsh told human resources magazine HR Leader.

“Many employers are not waiting for an employee to complain about a situation before suggesting that the parties engage in some form of conflict resolution process.

“Employers tell us that if they wait until the formal complaints process is triggered, the matter will often bog down in an internal investigation process that can be damaging to relationships.”

Flores-Walsh also says the forms of conflict resolution processes adopted by employers are evolving.

“`While conciliation and mediation are popular, we are also noticing employers sending their employees to conflict resolution training as a preventative mechanism,” she says.

Australian Bureau of Statistics data found 126,500 working days – an average of 3.3 days per 1000 workers – were lost in the first year of the Fair Work Act to June 2010.

This compared with an average of 2.7 days per 1000 workers under Work Choices.

Industrial relations lawyers and advocates are not surprised by the rise, saying the Work Choices regime imposed tighter restrictions.

For example, employers with fewer than 100 staff were precluded from being the subject of an unfair dismissal claim by an employee.

Hodgens says performance management is the most common reason for employees taking action against their bosses over the past year, followed by stress-related claims.

“A lot of people make claims around hours of work, workloads, bullying and harassment generally,” he says.

“The current hot case involving David Jones illustrates it (legal action) does happen and it’s something that will continue to affect employers and the way they run their businesses.”

Hodgens says poor communication is often at the core of disputes.

“The only way to deal with it is to have a clear policy, provide aggressive training and ensure compliance,” he says.

Other kinds of post-GFC disputes on the rise include shareholders taking directors to court over lost profit or the strategic direction of the organisation.

“The other kind I’ve seen increasing involves companies moving to protect their intellectual property with restraining clauses covering employees going to work for competitors,” Hodgens says.

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