What is the dispute about?

Terms and conditions of employment

Sometimes a dispute will arise over terms and conditions of employment. Your organisation needs to be very clear which terms and conditions of employment apply to your employee and you need to honour these.

There are minimum conditions of employment that apply to all employees (the 'National Employment Standards') and often other terms and conditions apply to your employees, depending on whether an award, agreement or determination applies to them. These might include conditions about penalty and over-time rates, loadings and allowances.

You will need more information, so start with PilchConnect's page on Entitlements.

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Underperformance

Underperformance includes:

• unsatisfactory work performance (failure to perform or appropriately perform the duties of the position)
• non-compliance with workplace policies, rules or procedures
• unacceptable behaviour in the workplace, or
• disruptive or negative behaviour that impacts co-workers.

Note: Underperformance does not warrant instant dismissal. For more information go to the Fair Work Ombudsman.

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Sexual harassment

Sexual harassment is a specific, serious form of harassment. It is unwelcome sexual behaviour which could reasonably be expected to make a person feel offended, humiliated or intimidated. It can be physical, verbal or written.

For information go to Human Rights and Equal Opportunity Commission.

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Discrimination

Discrimination is treating, or proposing to treat someone unfavourably because of a personal characteristic protected by law, it includes bullying someone because of a personal characteristic.

In Victoria under the Equal Opportunity Act 2010 (Vic) and under the Fair Work Act 2009 (Vic) characteristics protected from discrimination include:

• age
• carer status, family responsibilities, parental status
• disability
• employment activity
• gender identity
• lawful sexual activity and sexual orientation
• industrial activity
• marital status
• physical features
• political belief or activity
• pregnancy or breastfeeding
• race
• religious belief
• sex, or
• personal association with someone with or assumed to have one of these personal characteristics.

If this sounds like the cause of the dispute or if an employee is alleging discrimination, you need more information. For information go to Human Rights and Equal Opportunity Commission and the Fair Work Ombudsman.

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Bullying and occupational violence

Under the Occupational Health and Safety Act 2004 (Vic), bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. This behaviour is usually persistent and happens over time.

Bullying includes:

• verbal abuse, yelling, screaming
• abusive language or intimidation
• excluding or isolating employees
• assigning meaningless tasks or giving employees impossible assignments
• continually criticising someone
• sabotaging someone's work or their ability to do their job by withholding vital information and resources
• belittling someone's opinions
• unexplained job changes
• failure to give credit where it is due or taking credit for someone else's work.

Workplace bullying does not include reasonable management actions conducted reasonably.

From 2011 the Crimes Act 1958 (Vic) has recognised that the worst cases of bullying are a crime, punishable by up to 10 years in prison. The crime of stalking now includes bullying in the form of making threats to the victim and acting in ways that could reasonably be expected to cause the victim to engage in self-harm.

The Occupational Health and Safety Act 2004(Vic) prohibits occupational violence, too. Occupational violence includes:

• striking, punching, kicking, scratching, biting, spitting or any other kind of direct physical contact
• throwing objects
• attacking with a weapon
• pushing, shoving, tripping or kicking, and
• any kind of unwelcome and intentional physical contact.

For more information on bullying, occupational violence and the processes WorkSafe Victoria follows, go to Worksafe Victoria.

There is further information on bullying at Business Victoria and Human Rights and Equal Opportunity Commission.

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Family obligations and work

Employees have rights to certain family friendly entitlements and must not be discriminated against because of family responsibilities.

For information go to the Fair Work Ombudsman. 

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Privacy

In some circumstances employers - including your organisation - have legal obligations under privacy laws when you collect, use, store or share information about an individual.

Usually, an organisation will have access to such information about employees (and potential employees and ex-employees).

Your organisation must therefore consider your legal obligations under the privacy laws so you know how to treat personal information, and how to train your employees to treat such information to avoid disputes.

For more information, go to Office of the Australian Information Commissioner and the Fair Work Ombudsman and consider seeking legal advice because privacy is a complex area of law.

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Use of social media

Social media provides exciting opportunities for your not-for-profit organisation but it can create disputes in your organisation if, for example, an employee damages your organisation's reputation by using your organisation's social media sites, or their own.

There is recent case law from the Fair Work Commission about whether an organistion can regulate an employee's social media conduct (in certain circumstances the answer is 'yes').

For more information go to Corrs - especially the section on practical tips.

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