What are some of the Key HR Issues coming up for 2016?

As 2016 draws closer it is likely that some Key HR Issues will continue into the new year.

Heading into 2016, there is likely to be more fallout from Oracle harassment ruling. For readers that may be unfamiliar with this case this was a high profile s-xual harassment case that is like to have ramifications for the year ahead.

The Federal Court awarded a former Oracle employee $130,000 in compensation for workplace sexual harassment, which far exceeds the normal standard range of $12–18,000.

DLA Piper partner Brett Feltham told HR Daily the decision set a “new high watermark” for damages for non-economic loss stemming from discrimination and sexual harassment.  “What we have seen during this year is not necessarily an increase in those types of claims, but certainly a willingness on the part of courts to award damages in excess of perhaps what we would have expected to see prior to the Oracle decision”.

“We expect that this is a trend that will continue into the coming year,” says Feltham.  He says HR professionals need to stay abreast of recent changes in the following other legal areas.

Workplace bullying

The first year of the Fair Work Commission’s anti-bullying jurisdiction did not bring the wave of expected claims, Feltham says.

“That’s not to say that workplace bullying has not remained and is not an increasing issue in the modern workplace – and in fact we are seeing lots of workplace bullying complaints being made to employers and often in the context of there being broader performance issues being discussed with an employee,” he said.

One of the cases that did attract a lot of publicity this year saw a stop-bullying order issued against an employee who had engaged in conduct including “defriending” another worker on Facebook.

“[This] is a timely reminder that bullying doesn’t only occur in face-to-face discussions, but can also happen in the world of social media,” Feltham says.

Unfair dismissal

While there hasn’t been substantive change in the way the Commission handles unfair dismissal claims, this area of law is important for HR because these cases account for roughly 80 per cent of FWC claims, Feltham says.

The Productivity Commission’s recent draft report on the Fair Work Act review recommends the Federal Government prevent employees from receiving compensation for unfair dismissal in cases where evidence suggests persistent underperformance or serious misconduct, he says.

In addition, the report recommends that employers’ procedural errors should not be grounds for reinstatement or compensation.

“This is an interesting recommendation because it flows from a number of cases both this year and in previous years where the Commission has held that despite there being a valid reason for termination, that in fact the termination was unfair because of some procedural failing, whether that was as part of an investigation process or in putting allegations to an employee,” Feltham says.

“Some of the cases that have been handed down this year certainly provide more details on some of the do’s and don’ts for employers in that context.”

Adverse action/general protections claims

This year saw an upward trend in the number of claims in this jurisdiction, a trend Feltham expects to continue into the New Year.

“The adverse action/general protections jurisdiction has the advantage of being accessible by all employees – and others – and where a claim is upheld then there is no cap on the compensation that can be awarded,” he says.

“The Productivity Commission report has suggested some potential reforms and it will be interesting to see whether those reforms are ultimately made… The reforms include putting a cap on the compensation that can be awarded, and providing better definitional certainty around what types of claims should be brought in this jurisdiction particular where a claim relies upon the workplace right of an employee making a complaint or inquiry.”

Feltham says one of the high profile cases in this area this year involved an SBS journalist, who was sacked over a series of controversial tweets about ANZAC Day.

“While that claim ultimately did not continue as an adverse action claim, and was subsequently recast as an unfair dismissal type claim, it represents an increase in cases involving social media,” Feltham says.

Work Health and Safety

While no further progress has been made on the nationally-harmonised WHS laws, the past year has seen some interesting developments in case law for those jurisdictions operating under the harmonised legislation, Feltham says.

“One of the key findings from those decisions is… that there appears to be a trend to increase the level of fines recorded against employers and others in the context of work health and safety breaches,” he says.

“So, for example, earlier this year, a decision was handed down in the ACT where a fine was levied of $1.1 million out of a maximum possible fine of $1.5 million in the context of an electrocution death. We would expect the awarding of higher fines to be a continuing trend as the courts start to determine more and more cases under the harmonised legislation.”