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)  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”
“…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)
“…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.