Definition of Workplace Bullying and Available Options for Employees
I would like to inform certain facts about workplace bullying and the ways it shall be dealt with.
- Workplace bullying may be defined as unreasonable behaviors conducted towards any worker or any group of workers.
- Such unreasonable behavior includes humiliating, victimizing, threatening or intimidating (Castles 2016).In order to determine whether any behavior is unreasonable or not, one must consider whether any prudent person would deem such behavior as unreasonable or not.
- A conduct shall be considered as bullying if any person behaves aggressively at the workplace or tease while making practical jokes on any particular person repeatedly. Further, if any person pressurizes any person to exhibit any form of inappropriate behavior or unnecessarily exclude any person from taking part in any work related events, making unreasonable work demands (Corey et al. 2014).
- However, there are certain instances where a particular conduct shall not be deemed as bullying such as when the manager of the workplace takes any disciplinary action owing to the poor performance. Any reasonable management action that is performed in a reasonable way shall not be considered as bullying.
- Any form of bullying against employees must be prohibited at workplace and every employer must ensure that the employees do not face any bullying in the organization.
- Workplace bullying can have an adverse effect not only on the employee who is victimized but also upon the organization altogether as repeated bullying leads to an incline in the rate of absenteeism, increased rate of staff turnover and huge legal expenses (Dyson and Schellenberg 2017).In addition, the reputation of the company is also affected and consequently results in a decline in the growth and productivity of the organization,.
If any employee faces any of the above-described activities at workplace, such person may resort to any of the following options:
- The employee may talk about such workplace bullying to the manager or the supervisor of the company.
- If the employee is not comfortable to talk with the manager or the supervisor of the company, he/she may complain the same to the workplace health and safety representative.
- The victimized employee may also talk about such repeated unreasonable behavior before the human resource department or to the union of the organization.
In addition to the above authorities, such victimized employee may inform the Fair work Commission about such workplace bullying and take an action against the same. In case the Commission has passed an order to cease such bullying activities but the order has not been followed, the victim may report to the commission about the same for taking further action against such unreasonable activity (Flood 2016).
Although the organizations in Australia aims to prevent the incident of workplace bullying by improving organizational culture, but these organizational policies suffer deficiencies as these policies are formed only to address issues related to workplace bullying for a short term of period (Gray 2017). Further, such policies are inconsistent and ambiguous due to which the employees continue to face harm and inconvenience. Under such circumstances, the organizations must ensure that they recognize the factors that lead to the occurrence of such workplace bullying and communicate with the employees who have been subjected to such workplace bullying and attempt to provide redressal to such issues. The organization must constantly monitor the organizational policies related to workplace bullying and ensure that such policies are being effectively implemented and that every employees act in compliance with such policies.
The issue in the question was related to the client who stated that she believes to have faced workplace bullying. The activity that constitutes workplace bullying has been explained above. Any form of management action carried out reasonably shall not be deemed workplace bullying. In case the client thinks that she has been subject to workplace bullying, she can resort to the options mentioned above and take an action against the same.
According to rule 7.1 of the Australia’s solicitor’s conduct rules, every solicitor owe a duty to the client, the duty to serve the clients diligently and with competence. This rule was also established in the case of Vulic v Blinsky [1983] 2 NSWLR 427, 483. The solicitors should be completely aware of the fiduciary nature of their relationship with their clients and therefore they must always act in the best interest of the client (Higgins 2017).
According to rule 9.1 of the Australia solicitor’s conduct rules, a solicitor must not disclose any information that the client shares with the solicitor as such information is considered as confidential. However, the solicitor may disclose the confidential information if the client impliedly or expressly authorize such disclosure as was held in Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] 4 VR 332. Therefore, the solicitor cannot disclose the history of the accused person’s family without his consent.
According to rule 30.1 of the Australia Solicitor conduct rules, no solicitor must take any unfair advantage of the obvious mistake of any other solicitor if by taking advantage the client of the solicitor taking such advantage, shall be benefitted as this shall not be considered as supportable foundation in fact or in law.
Ethical Advice for Solicitors in Different Scenarios
According to rule 31.1 of the rule, if any solicitor receives any important and confidential information from another solicitor, which the solicitor receiving it is aware that such disclosure was unintentional, then the solicitor must not use such information or material. The solicitor must return, delete or destroy such material information or notify the other solicitor about the same and prevent the inappropriate use of such material. According to rule 31.3, if the client of the solicitor instructs the solicitor to read such confidential documents, the solicitor must refuse the same (Knake 2014).
A solicitor must be courteous and honest while dealing with the client and it forms an essential fundamental ethical duty of any solicitor in Australia. This rule was established in the case of Legal Profession Complaints Committee v in de Braekt [2013] WASC 12. A solicitor must act in the best interest of the client regarding the matter; the solicitor is representing the client. According to rule 5.1 of the Australia Solicitor Conduct Rule, a solicitor must not involve himself or herself in any conduct in the course of practice that signifies that the solicitor is not appropriate and not fit as a person to practice law. Such conduct may be prejudicial to the public confidence in justice administration or affects the reputation of the profession.
According to rule 15.2 of Australia Solicitor Conduct Rule, if a client confesses any guilt before the solicitor but maintains a plea of not guilty, under such circumstances, the solicitor may cease to act if there is sufficient time for another solicitor to take the case before the hearing of the case. The client cannot insist on the solicitor to carry on with the case and appear for the client (Moser 2016). In case, the solicitor continues to carry on with the case, the solicitor must not suggest to falsely allege any other person to have committed such offense, instead, may argue that for some reason the client is not guilty for the offense.
Wills are usually made when people grow old and wishes to pass on to the next generation. However, with possible dementia and old age, issues related to testamentary capacity arise more often. In Banks v Goodfellow [1870] LR 5 QB 549, lays down a test that determines the testamentary capacity of the will maker and every solicitor must apply this test before drafting any will. According to this test, a testator is said to have sufficient capacity if such testator is capable of comprehending the nature of acts and its consequences. If such testator is aware of the extent of property that he/she is disposing and is capable of appreciating the claims to which he or she is supposed to give effect. Therefore, before drafting the will the lawyer must apply the test to determine the testamentary capacity of client’s father.
The Australian court system relies on the parties to present before the court with all the necessary material to enable the court to make its decision. A self-represented litigant refers to those litigants who represent their own litigation without any lawyer (Wilson et al. 2016). The rationale behind allowing a self-represented litigant is that this would provide them recognition and the permissibility to use their desired language while representing themselves signifies that the representation of parties exist even when there is no lawyer representing the case. It also signifies that language does not imply any deficiency in case of self-representation (Parrott 2014).
However, the self-represented litigant may face several judicial barriers while accessing justice. Firstly, a self-represented litigant is not a qualified legal practitioner and hence, he or she does not have the expertise to assist the court as legal practitioners deal with the legal proceedings of the court. This often acts as a hindrance for the court while discharging its functions, that is, make decisions relating to disputes that the parties are unable to resolve themselves.
Secondly, the self-represented litigants are not qualified legal practitioners therefore; they are not governed by the legal duties that any legal practitioner owes to a court. Consequently, as the courts are highly dependent on such legal duties (Purser 2014). It faces issues while discharging its functions. Such duties include disclosure to the court, prevention of corruption of the justice administration, to prevent abuse of the court process and conduct cases expeditiously and efficiently.
Thirdly, in the event any dispute arises, that involves the self-represented litigant and the other party represented by legal practitioner; it would give rise to further issues relating to the fairness of the legal procedure that is facilitated by the court. This is similar to a situation where on one hand there is a layperson and on the other hand, there is a qualified practitioner. This difference between the skill and knowledge gives rise to issues related to the courts’ assistance to the self-represented litigant (Spencer 2015).
Fourthly, the self-represented litigant lacks the understanding of the legal process and the court is obligated to provide advice to self–represented litigant regarding the court procedure. This implies that the court proceedings become a time-consuming process (White e al. 2015).
Fifthly, a self-represented litigant faces language issue as the complex legal terms and language poses a challenge for them as he or she is dealing with such process for the first time.
Sixthly, a self-represented litigant also faces administrative barriers besides procedural barriers, which are common for the legal practitioners (Williams and Clemente 2016). Lastly, the self-represented litigants are not familiar with the forms related to legal matters and find it difficult to deal with the same. Furthermore, the court staffs are not familiar with the self-represented litigant therefore, they usually do not show much willingness of help out the self-represented litigant unless they are asked for it and the self-represented litigant feels reluctant to ask the same.
In this case, Juan is unable to afford the fees of the lawyer and therefore he has to consider all the above factors before dealing with the legal procedure of the court. However, there are certain support available to enable Juan represent the case appropriately. In 2001, a ‘Litigant in Person Management Plan: Issues for Courts and Tribunals’ was published by the AJJA Courts and the Public Committee to facilitate the self-represented litigant deal with his or her case. This document intended to provide various information and ideas regarding the tribunals and courts so that the self-represented litigant is able to formulate their own management plans. The Family Court has implemented numerous strategies and procedures for the self-represented litigant by providing ‘do-it-yourself-kits’ in order to provide the self-represented litigants with proper assistance and guidance in the form of financial statements, consent forms, affidavits, etc. The website of the Family Court provides electronic versions of information brochures, step-by step guide regarding the court proceedings and other regulations of the court.
Therefore, Juan must ensure that he goes through all the available sources before representing his case, as these sources would facilitate him to have access to justice.
In this case, as per the facts, the accused Mr. Dan Murphy took the bike from a place where entry of any public is prohibited, therefore, he has been charged under section 86 of the Prohibited Areas (Safety of Weapons) Act 2011 Qld that prohibits ‘loitering near or in eth vicinity of a prohibited place’.
Further, section 99 of Road Use Regulations 2015 Qld requires a person to drive with glasses in case the license of the driver is specifies the same. However, in this case, the driver’s license specifies that Mr. Dan Murphy must wear glasses while driving but he forgot to wear the glasses and continued driving.
While riding down the footpath, the accused person collided with a side parked car and fell down. He got up and stood for 20 seconds, and then jumped back on the bike and rode off. Again, he almost collided with a postman who lost his balance and fell into the gutter injuring his hand. The accused contended that he tried to turn sharply to avert the collision with the postman but he could not and the post man sustained injuries.
Here, the accused, Mr. Dan Murphy was charged under section 96 of the Road Use Regulations 2015 Qld any driver of a vehicle who gets involved in any road accident is required to stop at the scene of the accident. However, as per the facts of the case, instead of stopping after the bike accident, that is, the collision with the postman, the accused person dropped his bike and climbed up a tree in the public street. He should have stopped and helped the postman with his injuries but instead he left from eth scene of accident.
Furthermore, after leaving from the scene of the accident that the accused person was himself responsible for, he climbed up a tree on the public street and he started shouting at the passers-by using offensive and foul language until he came down the tree and was eventually arrested. Consequently, he was charged under section 101 of the Public Nuisance Act 1957 Qld where the use of offensive and foul language on the public street is deemed as public nuisance and is strictly prohibited under the Act. Any person who commits an offense under this section of the statute shall be punished with imprisonment for a period of 30 days and liable to pay a sum of $1000 as fine.
After perusing l the above facts and the contentions of the accused person, it is established that the accused person, Mr. Dan Murphy has conducted in a manner that is contrary to the following statutes:
Section 86 of the Prohibited Areas Act 2011, section 99 of the Road Use Regulations Act 2015; Section 96 of Road use Regulations Act 2015 and section 101 of the Public Nuisance Act 1957. Therefore, as per the facts and circumstances of the case, all the charges made against the accused person is likely to be upheld and shall be imprisoned till the for a period of 30 days with a fine of $1000.
Reference List
Castles, M., 2016. Barriers to Unbundled Legal Services in Australia: Canvassing Reforms to Better Manage Self-Represented Litigants in Courts and in Practice.
Corey, G., Corey, M.S., Corey, C. and Callanan, P., 2014. Issues and ethics in the helping professions with 2014 ACA codes. Nelson Education.
Dyson, D.D. and Schellenberg, K., 2017. Access to Justice: The Readability of Legal Services Corporation Legal Aid Internet Services. Journal of Poverty, 21(2), pp.142-165.
Flood, J., 2016. Corporate lawyer–client relationships: bankers, lawyers, clients and enduring connections. Legal Ethics, 19(1), pp.76-96.
Gray, P.D., 2017. Digital security and lawyers’ duties. Precedent (Sydney, NSW), (139), p.24.
Higgins, A., 2017. Rebooting the cab rank rule as a limited universal service obligation. Legal Ethics, pp.1-23.
Knake, R.N., 2014. Legal Information, the Consumer Law Market, and the First Amendment.
Legal Profession Complaints Committee v in de Braekt [2013] WASC 12.
Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority [2002] 4 VR 332.
Moser, H., 2016. Mediation in the family court of Western Australia. Brief, 43(4), p.20.
Parrott, L., 2014. Values and ethics in social work practice. Learning Matters.
Purser, K., 2014. Testamentary and decision-making capacity assessment in Australia. J. Int’l Aging L. & Pol’y, 7, p.73.
Spencer, R., 2015. Ethics in Pro Bono Practice.
White, B., Tilse, C., Wilson, J., Rosenman, L.S., Purser, K. and Coe, S., 2015. Estate contestation in Australia: An empirical study of a year of case law.
Williams, L. and Clemente, J., 2016. Risk: Social media and your practice: Playing it smart. LSJ: Law Society of NSW Journal, (20), p.81.
Wilson, J., Rosenman, L., White, B., Tilse, C. and Feeney, R., 2016. Cultural considerations in will-making in Australia: A case study of Islamic or Sharia-compliant wills. Alternative Law Journal, 41(1), pp.23-26.
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