You may find additional protection under the Commonwealth Fair Work Act 2009
The Act provides 10 National Employment Standards, including work hours, flexible work arrangements, leave entitlements, and termination payments. Section 44 of the Act ensures that your employer can not legally breach these standards.
You are also protected under the Act from adverse treatment resulting from your attempting to exercise a workplace right. A workplace right may be defined as:
- The entitlement to the benefit of a workplace instrument or workplace law;
- The ability to participate in or initiate proceedings under a workplace instrument or workplace law;
- The ability to make an inquiry or complaint to either – a person who has the capacity to seek compliance with that workplace instrument or workplace law – or in relation to your employment.
Your employer is prohibited from taking any adverse action against you for possessing, proposing to exercise, or exercising a workplace right. Your employer is also prevented from taking adverse action to prevent you from exercising a workplace right.
Adverse action relating to employment is defined in section of 342 of the Act as the dismissal, injury, or alteration of employment that results in prejudice or discrimination between employees.
Section 351 of the Act protects you from adverse action on the basis of sex, age, race, and other inherent attributes.
If you lodge a claim with either the Human Rights and Equal Opportunity Commission, or Fair Work Australia, you are entitled to the protection of certain victimisation provisions found in the Victorian Equal Opportunity Act 2010. Section 103 of the Act prohibits an employer from victimising you for making a complaint to an external authority. Section 104 of the Act defines victimisation as the subjection to detriment due to:
- Having brought a dispute to the Human Rights and Equal Opportunity Commission;
- Having made a complaint under a previous Act.
If you are treated adversely following a complaint you made about your employer or manager, you are protected by the Act and may make a further claim against your employer.
Your employment may still be at risk, despite these protections. You may be targeted with allegations of poor performance or misconduct, your employer may even provide you with formal warnings, which are a precursor to lawful termination. These attempts may be an attempt by management to bully you into resigning voluntarily, or to prepare misconduct proceedings prior to your dismissal.
In this case you have the option of applying for an injunction to prevent your employer from dismissing you.
As a teacher, I’ve heard that Brodie’s Law offers protections against bullying and harassment. Our school has a new principle, and they have begun to bully me. They have actively prevented me from pursuing training promised to me in my employment contract. What are my rights?
Bullying was, until recently, viewed as an Occupational Health and Safety issue, and dealt with as such. Recent amendments to theVictorian Crimes Act 1958 mean that bullying can now result in a criminal prosecution, punished by up to 10 years jail. The provisions of the Victorian Equal Opportunity Act 2010 may offer a better avenue through which to pursue a bullying claim.
Victorian Occupational Health and Safety Act 2004
Under this Act, bullying comprises behaviour that is repeated, unreasonable, and directed towards an employee or group of employees, that creates a risk to health and safety. Breaches of this Act are investigated by WorkSafe Investigators. Criminal sanctions, including imprisonment of up to five years and/or a large fine, may result from such investigations, as it is prohibited for an individual to behave in a way that recklessly endangers employees at a workplace by placing them at risk of serious injury.
Types of bullying
- Aggressive yelling, screaming, or general verbal abuse;
- Language that is intimidating or abusive;
- Excluding or isolating a victim or victims;
- Assigning impossible tasks or meaningless tasks to a victim;
- Continual criticism of a victim;
- Sabotaging someone’s ability to perform their job by withholding information and/or resources;
- Belittling opinions held by others;
- Changing someone’s employment without explanation;
Not giving due credit, or taking credit for somebody else’s work.
New anti-bullying laws
The Victorian Crimes Act 1958, section 21A was recently extended. This extension involved changing the offence of stalking to include workplace bullying. If you have been subjected to the following treatment, you may be covered by this recent extension to the Crimes Act 1958:
- Received threats;
- Been subjected to offensive or abusive language by another employee;
- Been subjected to offensive or abusive acts by another employee;
- Another employee has performed abusive or offensive acts in your presence;
- Another employee has acted in any way that could be expected to reasonably – cause mental or physical harm to the victim of this action, including self-harm; aroused fear or apprehension in the victim for their own safety or that of any other person.
Prosecution of a bully under the Crimes Act 1958 does not exclude the bully from also being fined/prosecuted under the Victorian Occupational Health and Safety Act 2004.
The best remedy for your situation may be a discrimination claim made through the Victorian Human Rights and Equal Opportunity Commission. An alleged breach of the Victorian Equal Opportunity Act 2010, and an outline of the behaviour and corresponding provisions that have been contravened, must be included in the claim.
I was called to my manager’s office, where I was handed a document and told that my employment was being terminated. Feeling flustered and anxious, I signed the document without reading it. I later learned that it was a deed of release. Can I do anything about this?
A deed of release is a crucial and legally binding document that establishes a post-termination agreement between you and your employer. It may contain a final settlement as to legal rights after the end of your employment. Often, a deed of release negotiates a sum of money which may be considered compensation for your termination, upon receipt of this money, you generally agree not to bring legal proceedings or disturbance against your former employer.
Should you attempt to bring legal proceedings against your former employer in the future, your former employer will refer to this deed of release, which you have signed, and ask the court, tribunal, or other body to prevent you from continuing your claim.
Also known as a termination letter, a deed of release often contains statements regarding issues such as taxation, severance pay, legislation which you cannot rely upon to bring legal proceedings against your former employer, post-termination restraint on trade covenants, and assurances on your own behalf that you will not make derogatory statements about your former employer, as well as maintaining confidentiality.
You (or your lawyer) may request a statement of service, or written reference from your former employer, so that you may continue your career without being stigmatised due to your dismissal.
A deed of release, when properly negotiated by both parties, reflects a mutually beneficial agreement between your former employer and yourself. This is regarded as a positive and respectful way to end an employment relationship. However, as a deed of release constitutes a legally binding document, you must be aware of the consequences of signing one, especially without proper consideration. Many deeds of release contain agreements that the terminated employee will not bring any legal action against a former employer (excluding WorkCover claims).
With this in mind, it is crucial that you thoroughly consider any documents that your employer provides for you to sign. It is recommended that you take home a document such as a deed of release, and thoroughly scrutinise it in case its terms are not agreeable.
It is possible, that under such as stressful, and possibly unexpected, circumstances as hearing of your impending termination, you may have signed a document such a deed of release when it is thrust in front of you. If you have had a successful tenure with the employer, and you usually managed to meet or exceed performance expectations, you may believe that your employer would consider your best interests when providing a document such as a deed of release.
This may not be the case, and if you signed a deed of release containing terms which are detrimental to you, you should obtain legal advice as to how you may be compensated. You will need to apply to a court to have the signed deed of release set aside. Whether or not the deed will be set aside depends on a variety of facts and the specific circumstances of your termination.
There are a set of regulations which you may rely on if you are able to establish that the signed deed of release should not be honoured:
A deed of release signed under duress is the most obvious example of a situation where the deed is likely to be set aside. Duress may in this case refer to economic or physical duress where you were subjected to excessive pressures to sign a deed of release. Threats of violence or other adverse behaviour if you do not sign the deed, made to you or an associate, may constitute an act of duress by your employer. If you can demonstrate that a threat to your safety, or the safety of someone you know, is the reason that you signed a deed of release, you may have grounds for it to be set aside.
Economic duress describes a situation where enormous pressure is placed on you to sign a document without any threats to your physical safety being made. Your employer may attempt to persuade you to resign by offering severance pay, or to convince you that you are not entitled to more money. Demonstrating to the court that you were under considerable economic pressure to sign a deed of release may be sufficient grounds for it to be set aside.
Undue influence refers to a situation in which the relationship between parties ensures that no fair agreement can be reached. There are certain relationships that are deemed by the law to be inherently unbalanced, and any agreement entered into by participants in such relationships may be presumed unfair and set aside upon application to the court. Although the employee/employer relationship is not deemed to be inherently unbalanced, there are many circumstances where there are explicit power imbalances in the relationship between employee and employer.
If you are able to demonstrate that the relationship between you and your employer was inherently unbalanced, it is then up to your former employer to demonstrate that the agreement entered into by you was made in a way that is fair.
During negotiationsconcerning important agreements like a deed of release, it is possible that you may not fully understand the implications of the agreement you are making with your former employer. Factors such as your language ability, education, or mental disorders/disability may be considered when determining whether or not the agreement was made as a result of unconscionable bargaining. Unconscionable bargaining may provide grounds for having a deed of release set aside even if there was no inherent imbalance in the relationship between you and your employer, and/or the agreement was not made under duress.
The ability to launch a successful application to have a signed deed of release set aside are strongly dependent on the specific circumstances of your case. It is recommended that you seek legal advice if you have signed such a document which later turned out to be detrimental to you, as pursuing compensation may be a difficult process due to the fact that such documents are legally binding.