Norton Rose Partner Michael Tooma Disharmoniously Defends Current Bullying Laws

As many of our readers working in employment law are doubtlessly by now aware, the Victorian Government recently announced potential changes to workplace laws that would create tougher penalties for workplace bullies through a VLRC review of the current framework.

Tooma belts out an ordinary tune

As reported by Herald Sun earlier this week:

The push to introduce harsher regulations was sparked by the tragic death of 19-year-old waitress Brodie Panlock, whose tormenters couldn’t be jailed and were only able to be fined… Ms Panlock took her own life in September 2006 after a year of relentless and cruel bullying at the hand of her co-workers in a Hawthorn cafe.

Despite the tragic genesis of the laws and the highly justifiable policy basis upon which they will be legislated, it is hardly surprising that a partner at a major corporate law firm would speak out in favour of the existing framework. Bullying, of course, is a popular allegation levelled at many major Australian corporate firms:

• a former employee is currently pursuing claims against the Clayton Utz for alleged sexual harassment and bullying;
• earlier this year former Freehills lawyer Nicole Stransky settled a dispute arising with her former firm out of her claims that she was bullied and harassed during 2008 and 2009 to such an extent that she developed suicidal thoughts and a general deterioration in her mental health; and
• a 2005 Mahlab survey found: “Bullying in the workplace was reportedly not uncommon, with nearly a quarter of private-practice lawyers surveyed advising they had been the subject of bullying behaviour, including intimidation, shouting, persistent and unjustified criticism and, for nearly 70 per cent, humiliation through sarcasm, criticism or insults.”

And so, with very little surprise, we read on Monday the following comments made to the AFR by Norton Rose OHS & employment law partner Michael Tooma:

“The Victorian government’s proposal is yet another example of the unravelling of the programme of harmonisation of work health and safety laws.” If states used criminal laws to legislate additional standards then gains from harmonisation would be lost, he said.

Mr Tooma declined to elaborate on the “gains” from harmonisation that would be “lost” if Victoria introduced its own independent laws to address workplace bullying. Tooma also conveniently failing to address how the new laws might act as a disincentive to the partnership bullying  that occurs in many corporate workplaces such as his own.

So in the absence of Tooma’s clarification in this regard, we have taken it upon ourselves to highlight how, in search of his inner personal harmony, Mr Tooma might consider harmonising his own views on a range of topics. For example:

1. Tooma recently told Smart Company that “It would certainly be a concern if there is a pattern of overworked people not taking appropriate breaks, and it’s certainly becoming a trend in the way business is conducted these days because people are doing so much more… We have to be very careful that we don’t drive a culture of overworking. People just end up working excessive hours and employers will find out it costs them so much more in the long run because of stress, sick leave and the long-term health of the employee…Promoting a healthy lifestyle, even beyond the office, is good business.”
2. Yet in a hyperbolic dialogue with the AFR at the height of the Swine Flu pandemic fears, Tooma hilariously advised employers to “stock up on face masks” before cautioning employees presumably hoping to work at home if the pandemic hit Australia that “if employees are concerned about their own safety, mere apprehension alone is not a justifiable reason to stay away from work.”

So on the one hand Mr Tooma admonished employers of the imperative to create a work environment where employees feel like they can take sick leave, yet on the other hand, when his own employees apprehend a danger that they might be infected with the potentially fatal Swine Flu pandemic, Tooma advised employees to use a firm face-mask and come to work. Pig’s arse!

Disharmoniously, Michael Tooma was also a partner at the firm (then named Deacons) in its OHS & employment practice when an allegation (and in our view a compelling one) was made by a person purporting to be an ex-Deacons employee that he was made made redundant two months before someone was hired to replace him. The alleged ex-Deacons employee stated:

I have since discovered from a current Deacons employee that within two months of my departure, a new IT Trainer was employed to directly replace me. I think it is abhorrent and perhaps even unlawful that firms are able to cut ‘unwanted’ staff using the spectre of a recession to avoid legal repercussions. Clearly even in these tough economic times my role was required. It is vitally important that others are made aware of Deacons’ modus operandi before they make the big mistake of signing an employment contract. [Name and Contact Details Withheld]

If the allegations of replacement is true (being a rumour we cannot confirm), we agree that it was probably unlawful for the individual to have been made redundant. Fairwork Australia advises that a redundancy is not genuine when, among other things:

the operational requirements of the business have not changed and the employer still needs the employee’s job to be done by someone.

Disharmonious indeed that an expert in OHS & employment law would miss this one!

But was the harmonica also in Tooma’s hand when he observed that “there are actually different legal obligations for providing adequate amenities” several months after a decision was made at his firm to force lawyers to place their faith in bathroom motion sensors and risk crapping in the dark? What about the loss of amenity that workers suffered when the decision was made to lock the stationary cupboard?

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