Problem
Scenario:
Helping Hand Foundation is a non-profit organization that provides services to victims of domestic violence in Melbourne. It operates with a staff compliment of ten employees, five of whom only work part-time. Staff are covered by the Social, Community, Home Care and Disability Services Industry Award 2010.
Patricia has been working as the operations manager of the organisation for the past five years. Patricia is very good at her job, but her colleagues do not enjoy working with her. She does not tolerate opposition and becomes sullen and uncooperative when she does not get her way. She also tends to become verbally abusive when challenged. She has received informal warnings before about this behavior, but generally the Board of Trustees see her as essential to the work of Helping Hand and turn a blind eye to her faults.
In June this year, the previous CEO resigned. Patricia hoped to become the CEO of Helping Hand, but the trustees decided to appoint an external candidate, called Justine. Justine has a wealth of experience and soon start to implement changes to the way Helping Hand operates that she views as essential to provide a better service to their stakeholders. This does not sit well with Patricia. Not only does she resent to have been overlooked for promotion, but Justine's actions include directing Patricia to implement changes in operations. Patricia insists these changes constitute a 'major workplace change' for purposes of the consultation clause in the Award, but this is rejected by Justine.
Patricia begins to complain constantly to other staff about Justine, criticising everything about her, including her physical appearance and her intelligence. Justine is aware of what is said. They operate from an open plan office and it appears that Patricia wants Justine to hear what she says. Colleagues are afraid to say anything in opposition, because they know that Patricia will turn against them too if they did. Eventually, things come to a head when during a meeting, Patricia outright refuses to comply with a direction by Justine to switch to a different supplier.
Justine approaches the Board of Trustees. With their approval, a formal written warning is issued to Patricia, which indicates that any further insubordination or disruptive conduct could lead to her dismissal.
Question I
Patricia sulks for a day or so after receiving the formal warning. On day three, Justine is out of the office to visit a potential donor. Patricia calls a meeting of the staff, which is not unusual. However, during the meeting Patricia informs her colleagues that she is going to send a vote of no confidence in Justine to the Board of Trustees and that she wants all of them to sign the document in support. The document will further state that if Justine is not dismissed, the employees will stop working every day at 3pm in protest.
Two of the colleagues are too scared of Patricia to object and sign immediately. Three others object, but Patricia responds so aggressively that two more sign the document. Patricia sends the document off to the Board.
Consider whether the Helping Hand Foundation could approach the Fair Work Commission for a section 418 stop order in terms of the Fair Work Act 2009 (Cth).
Question II
You are the part-time HR manager of Helping Hand. You were not working on the day of Patricia's meeting. When you walk into the office the next day, mayhem awaits you.
Justine wants to dismiss Patricia. She asks your advice about whether dismissal would be considered unfair in the circumstances.
Assist Justine with her inquiry with reference to the provisions of the Fair Work Act 2009 (Cth).
Question III
Patricia is summarily dismissed. As she leaves the office, she shouts: "You will hear from my lawyers! You would rather fire your best worker than consult with her as required by law!"
Advise Justine on whether Patricia could institute action in terms of Part 3-1 of the Fair Work Act 2009 (Cth) against Helping Hands and what her chances of success would be. Your answer must refer to relevant case law and legislation.
Question IV
You have received an email from WorkSafe Victoria.
They have received an anonymous complaint from an employee at Helping Hand that it is in breach of its workplace health and safety obligations. More specifically, it is alleged that there is rampant workplace bullying, of which the responsible officers are aware, and that they have not implemented reasonably practicable measures to ensure the health and safety of their employees.
Advise the Board of Trustees about what their legislative duties are and whether they have failed to meet these duties.