Risks of taking bullying or harassment directly to the Courts

Seeking justice through the court system is everyone’s right but sometimes court action is more newsworthy than normal and sometimes the media is used in conjunction with legal actions.  Either way, any court action, particularly on personal matters such as sexual harassment or workplace bullying will be a stressful activity. The workplace safety context of a recent political scandal in Australia involving the Speaker of the House of Representatives  Peter Slipper, and an employee, James Ashby, have not been discussed.  A summary of, or commentary on, the Ashby/Slipper scandal can be found HERE.

The judgement by Justice Steven Rares in the December 2012 legal proceedings of Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411, provides a salient lesson for those considering taking legal action over a work-related issue, such as sexual harassment, workplace bullying or other psychosocial matter.

Ashby-Slipper and OHS

The Ashby-Slipper sexual harassment proceedings have a legitimate OHS context, reminiscent of the 2009 political scandal involving Godwin Grech. Although occupational health and safety was not overtly stated by Justice Rares it is briefly discussed in the judgement. It is useful to consider these matters in a similar context to recent issues on workplace bullying.

(Michael Harmer, of Harmers Workplace Lawyers, who represented James Ashby, submitted to the Parliamentary Inquiry into Workplace Bullying that sexual harassment is a type of incident of workplace bullying, discussed below.)

Section 103 of the judgement states that

“…Mr Harmer wrote to the Minister for Finance on behalf of both Mr Ashby and Ms Doane asserting that both of his clients had been absent from work on sick leave “because their health has been affected by conduct associated with their employment”.”

Justice Rares was critical of James Ashby for rushing to the Courts instead of seeking resolution through many of the established options available to Commonwealth public servants. Sections 193-4 of the judgement discuss these options and Rares says:

“If any of the alternative courses of action had been pursued, there is no evidence to suggest that it would not have provided an effective resolution of any grievance Mr Ashby had against Mr Slipper.  And, if there were any substance in his allegations, any such procedure could have offered the possibility that steps would be taken to prevent any repetition.”

Any action pursued through Courts can be very complicated and prolonged.  In a circumstance where one’s psychological or physical health is being affected, the best course of action is likely to be to take advantage of the health and resolution services offered by one’s employer, trade union or industry association, prior to considering legal action, as Justice Rares implies.

It is unlikely that Peter Slipper will regain his position as Speaker of the House of Representatives. That this saga has taken so long with an inordinate media scrutiny, it would be surprising if Slipper did not avail himself of the support mechanisms available to him through his employment or that some sort of workers’ compensation was sought.

Vexatious Bullying Claims

In his role as chairman of Harmers Workplace Lawyers, Michael Harmer made a submission to the 2012 bullying inquiry which clearly places workplace bullying and sexual harassment in a similar legal category:

“By way of example, the types of incidents of workplace bullying that have been raised by clients are:

  • …Spreading of rumours…
  • …Vexatious allegations targeted at an individual…
  • …Sexual harassment…” (section 3.2)

Michael Harmer, made a representation to the Parliamentary inquiry into Workplace Bullying in Brisbane in July 2012.  At that time, he was asked about the potential for vexatious claims on workplace bullying. He responded:

“We have obligations as lawyers to heavily test the claims that come before us. Sometimes before we will do anything we will insist on taking the statement under oath and things of that nature. It is sometimes difficult to test out fully the person before you—some of whom are themselves the bully, as it turns out; they do get removed from time to time and they will often try and use the law as another mechanism to leverage an outcome. It does happen. I must say that in my experience it is a very small percentage, we find. But they do exist, and you need to be on guard against it.

Certainly any employer needs to be very careful in the way that it investigates these sorts of incidents. There is a whole raft of procedure and law around how you go about fairly investigating these matters, but you have to be fair to the complainant, also to the alleged bully and to everyone else around in going about the conduct. It does arise. In workplaces it is regularly used to attack people. Often the complainants of bullying are the bullies themselves.”

The December 2012 edition of the Australian Parliament’s magazine “About The House” contains a feature article on workplace bullying . The article quotes Michael Harmer, the same Michael Harmer who Justice Rares says, along with Ashby, included information

“…for the purpose of injuring Mr Slipper and for no legitimate forensic purpose”

and that

“…I am of opinion that Mr Ashby’s and Mr Harmer’s pleading of 2003 allegations was scandalous, oppressive and vexatious and an abuse of Mr Harmer’s professional obligations to the Court as a lawyer.” (section 165 of the judgement)

and that

“…Mr Harmer breached his professional obligation…” (section 190 of the judgement)

The media and legal strategies employed by Michael Harmer surrounding sexual harassment cases are being discussed in other areas of the media, such as Smart Company, Crikey, The Age, The Sydney Morning Herald, and elsewhere, and are likely to be analysed in  media and legal courses for some time.  These strategies should also stir serious discussions in the safety profession.

Stand-alone Bullying Law

According to the workplace bullying feature article, Harmer believes that workplace bullying requires its own law as:

“…there is no standalone law which prohibits bullying.”

This indicates a preference, common to many labour lawyers and human resources professionals, to deal with workplace bullying under the industrial relations legislation and through the Fair Work Commission even though OHS laws prohibited workplace bullying  in Australia for at least a decade through OHS obligations on reduction of physical and psychological harm. An OHS regulatory focus on the psychological welfare of workers may have been under-utilised but the prohibition on occupational violence and bullying was there and remains so.  Harmer expands further on his standalone law in the parliamentary submission mentioned above.

The reference to “standalone” law is a furphy and a strong argument can be made for the pursuit of workplace bullying under the OHS laws.  The recent work health and safety laws in Australia provide an even stronger opportunity as health is clearly defined as “physical and psychological health.”

Much of the bullying activity that occurs in the Fair Work Commission seems to relate to performance management and unfair dismissals, in short, a resolution of a dispute.  Occupational health and safety laws have a different aim – to avoid and prevent harm.  These aims may overlap but both legal areas and their related resolution processes have considerable operational baggage that can delay and confuse. It is for this reason that Recommendation 11 of the Parliamentary Inquiry into Workplace Bullying  – “a new national service to provide advice, assistance and resolution services to employers and workers” – should be supported, even though it may not be compatible with the aims of some for an increased workplace bullying role for the Fair Work Commission.

Kevin Jones

reservoir, victoria, australia

10 thoughts on “Risks of taking bullying or harassment directly to the Courts”

  1. I concur with APS Dignity on this. Kevin Jones is correct in finding the dynamic described by APS Dignity disturbing.

    At http://apsozloop.ning.com we have been looking at bullying within the Australian Public Service in-depth. As correctly pointed out the problem is associated with the power differential. This is particularly the case where the subject of the complaint holds a superior position within the hierarchy and the complainant a lesser one.

    In my view Justice Rares views on this matter mirror those of the wider Australian Public Service in terms of the value attached to preserving the status quo so far as maintaining power differentials is concerned. In many ways what has been said to Ashby and his legal team amounts to little more than saying \”We don\’t like your actions and deem them invalid\”.

    This mirrors the situation in the wider Australian Public Service where complaints made against superiors through the appropriate channels result in the complainant quite literally being put through hell.

    Labelling the complainant and criticising their approach are very much part of the dynamic. If you want to get a feel for this check out our paper Targets, Victims, Patients and Perpetrators http://apsozloop.ning.com/profiles/blogs/targets-victims-patients-and-perpetrators-understanding-australia

    The key point here is that harassment and bullying is a complex sociological issue. With all due respect to Justice Rares the legal lens, like the industrial and administrative lens, are insufficient when it comes to analysing complex issues of this nature.

    This insufficiency is unfortunate given the flaws inherent in official complaint channels. If you want to get a feel for the complexity of this insufficiency you might want to check out our submission to the national bullying inquiry http://apsozloop.ning.com/profiles/blogs/submission-to-bullying-inquiry-the-totalitarian-practices-of-corp

    In the absence of the radical reform of complaints mechanisms I believe it is imperative to ensure that the mechanism of last resort – the courts – adopt a more more critical approach and not be so enamoured of the status quo.

    1. I agree with many of ozloop\’s comments but I think it is unfair that the \”legal lens\” is insufficient\” to deal with sexual harassment and workplace bullying. Courts are not static or fixed and do change to incorporate or reflect social priorities. Yes it can be far too slow when someone is being psychologically harmed but that is why the OHS legislation has issue resolutions processes, companies have Employee Assistance Programs, union-supported negotiations, avenues of appeal, etc. Those processes are far from perfect but I prefer to work to improve those processes than dismiss them outright.

      Is it a thankless task? Frequently but I believe it is the task that will achieve the most sustainable outcome.

      Also please remember that workplace health and safety is at preventing harm. I urge those who deal with the after-effects of harm to tell us about any harm prevention initiatives as your perspective is invaluable in keeping OHS professionals grounded in reality.

  2. Hi Kevin… suggest you first get in touch with Professor Brian Martin of the University of Wollongong and Associate Professor Paula McDonald of the Queensland University of Technology on this issue. They are a wealth of knowledge. In addition, ourselves and OZloop have been conducting research on this, and the stories of victimisation we have heard coming out of the APS are hugely disturbing.

    1. I will look for resources from Brian and Paula. I too have heard many stories of victimisation as well as reading impact statements and stories of the personal trauma of workplace fatalities, early deaths and psychological harm. I continue to look for strategies and innovations that can eliminate or minimise psychological harm at work as I aim to prevent harm in order to avoid the need to compensate.

  3. Angus, I agree that Rares\’ comments seem to imply that Ashby\’s legal actions, without first seeking resolution through employment support services, are odd and, perhaps, politically motivated.

    APS Dignity\’s comments disturb me as I would have liked to believe that public sector employees have access to reliable and effective resolution and support services. If a link to the research mentioned is available, please share it as I would like to pursue these comments further.

    I think the assertion that Justice Rares doesn\’t \”understand the power imbalances\” is unfair as he was addressing one complaint and, as Harmers says (http://www.harmers.com.au/NewsAlertsPressReleases/616/n/3/0/0/) ,

    \”Contrary to some public perceptions, James Ashby\’s sexual harassment case against Mr. Slipper has not been heard in court, and no judicial finding has been made as to whether James was sexually harassed by Mr. Slipper.\”

  4. As Professor Brian Martin (an expert on whistleblowing and sexual harassment) holds (as would many other sexual harassment experts hold), the fact is that very rarely will a sexual harassment target receive a reasonable compensation payout without using some type of publicity. Just read the literature on Outrage Management Tactics, and you will understand this point. Thus, from a theoretical viewpoint, James Ashby/Michael Harmer was largely right in publicly exposing Peter Slipper\’s behaviour in order to protect James Ashby from further harassment and increase his chances of a reasonable settlement (as secrecy is one of the most powerful weapon\’s harassers have against their targets).

    As our website discusses, using official complaint channels, such as those that would have been offered by James Ashby\’s employer, would likely have been useless, if not harmful, as research shows that such channels are often used to \’contain\’ complaints to the detriment of targets, so as to try to limit the liability risks of employers. Indeed, we generally recommend to targets of sexual harassment to avoid official complaint channels where possible and, if they choose to go down that route, not expect any beneficial outcome unless there is historical evidence that indicates the contrary.

    Unfortunately, Justice Rares has potentially severely curtailed targets\’ abilities to address the power imbalance between them and their harassers by criticising James Ashby\’s approach. Justice Rares just doesn\’t understand the power imbalances sexual harassment targets face. Indeed, more sexual harassment targets will probably now suffer behind closed doors because of this court decision.

    Let us hope that James Ashby\’s legal team will show some competence in the appeal to demonstrate why it is so important for targets to have the ability to publicly expose wrongdoing. Their failure or success in the appeal will have heavy and far-reaching implications.

  5. Using the Ashby case to mount an argument about how legal claims of bullying or harrassment pan out is highly problematic. For one, it has been thrown out as an abuse of process unlike thousands of genuine claims over the years. It is the only case I have ever seen where an employee has access to over one million dollars in legal and PR resources. It is unique, in my experience.

  6. Whether you view harassment and bullying through the HR lens or through the safety lens (and there are very good arguments for the proposition that you should use both lenses at all times), the common ingredient in matters which get to a court or tribunal is that there was an opportunity to resolve the matter close to source which was missed.

    Sometimes the opportunity is missed because the person who is subject to the conduct did not have a grievance procedure to turn (or was not aware of the existence of the grievance procedure, or did not trust the grievance procedure). However, in Ashby\’s case, the effect of the findings of Rares J appears to be that the option of resolving the problem close to source was deliberately ignored because that option would not have wrought the political damage on Slipper which was the predominant reason for Ashby\’s claims.

    It will be interesting to see whether Ashby pursues the adverse action claim which has been announced to the press. The largest problem with that claim would appear to be that as Ashby has already received $50K fro a claim which is not worth anything like that, it will be difficult for him to show that there is any legitimate purpose in further pursuing the claim. The crowning irony in all of this is that Ashby continued to be employed by Slipper up until the day that Slipper resigned as Speaker – the act of resignation ended Slipper\’s entitlement to engage staffers, so that any economic loss which Ashby might have suffered was brought about by his action in bringing the claim.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.