General protections: boss says he will “kill” worker, claims cultural insensitivity
A general protections case has seen the Fair Work Commission dismiss a bullying boss’ argument that his threat to “kill” an employee was misperceived due to cultural differences. The employer, a Korean national, had said that in his culture extreme threats are accepted playfully. The employer had also regularly patted and pushed his employee in order to get him to work faster. With 40 percent of the Australian workforce foreign born employer says “kill” threat is his cultural right could be relevant and interesting reading.
The employee alleged that he was subjected to an adverse action, having been forced to resign due to the bullying he experienced from his boss. Unfortunately, bullying behaviour from bosses isn’t something that we at A Whole New Approach are unfamiliar with. We regularly receive calls from Australian workers that have suffered similar and worse treatment than this employee.
But for a employer to attempt to mitigate his bullying behaviour by claiming it should be viewed in the context of his culture is one of the more novel excuses we’ve seen. In this article, we detail the shocking behaviour of this bully boss that came to light in the general protections case – Nathan Christopher Green v KS United Pty Ltd. But first, let’s define exactly what the general protections are, as well as an adverse action.
What are the general protections?
The general protections provisions of the Fair Work Act 2009 are the rights that all Australian workers are entitled to. This includes the right to:
- Be paid correctly, receive leave and other entitlements.
- Take up union membership and participate (or not participate) in union actions.
- Take sick leave if you suffer illness or injury.
- Not face discrimination for your sex, race or any other immutable characteristic that is protected by state or federal anti-discrimination laws.
- Issue a complaint about the conditions at your workplace, or simply to make an enquiry.
- Take advantage of the benefits of an industrial law or instruments. This includes the right to benefit from an award or enterprise agreement. Also, a workplace safety law.
You can read more about the general protections provisions in our article here.
What is an adverse action?
An adverse action is an illegal action that harms an employee in their employment and was taken for a prohibited reason. For instance, if an employee is dismissed because they made a complaint about their work conditions. Or if they were bullied because they joined a union. Or even if a prospective employee wasn’t hired because of their race or gender.
You can read more about the specifics of adverse actions in our article here. Now, let’s take a look at the general protections case.
General protections case: 18-year-old waiter subjected to bullying and threats from boss
A recent school leaver, Sydney teenager Nathan Green was employed as a casual waiter at the Japanese restaurant Ikura Pymble (known formally as KS United) in May 2022. The restaurant is owned and run by Mr Namkoong, with the help of his wife, Ms Wang. Mr Green was typically supervised by Ms Wang, but on occasion, he worked along side Mr Namkoong. In the first seven weeks of working at the restaurant, Mr Green regularly experienced belittling behaviour from Mr Namkoong.
On up to ten occasions during this time Mr Namkoong had heavily patted Mr Green on the back while castigating him for errors he had made. This included turning up to work late and not working fast enough. While finding Mr Namkoong’s habit unusual, Mr Green wasn’t made upset nor felt unsafe by it. He therefore didn’t raise any objection to it. The behaviour, however, would later form a key focus of his general protections case.
“If you make my wife stressed, I’ll kill you. Okay?” Boss makes death threat
But on 18 July 2022, Mr Namkoong’s behaviour took a worrying turn. While Mr Green was cleaning tables, Mr Namkoong approached him and said:
“You know how you work with Amy, you know Amy is my wife? She told me that you are making her very stressed by not working fast enough. You can’t be making my wife stressed.”Mr Namkoong
A few minutes later, as Mr Green was walking past, Mr Namkoong placed his hand on his shoulder and lightly pushed him forward. While the push didn’t cause Mr Green to fall, he stumbled for about five steps.
Employee resigns, makes general protections claim
Later that night, Mr Green realized that the treatment he had experienced was part of a pattern of behaviour that made him feel unsafe. The next day he contacted SafeWork NSW, who told him to go to the police. Mr Green later made a formal statement at the local police station. But he left there under the impression that the police considered the bullying a workplace matter. Feeling that returning to work his shift the next day would be unsafe, Mr Green decided to write a resignation letter to Mr Namkoong. His father delivered it to him that afternoon.
Days later, Mr Green filed a general protections claims with the Fair Work Commission. In the claim, he alleged that he had been subjected to adverse action.
Fair Work Commission rules on the general protections case
At his general protections hearing, Mr Green argued that he had been forced to resign because he had exercised a workplace right. That is, the right to a safe workplace and to be free of bullying. He said that the bullying he’d experienced made him fearful of returning to work. He believed that Mr Namkoong’s conduct had been repudiatory, and that he accepted the repudiation, thereby bringing his employment to and end. That is, by forced resignation.
Mr Namkoong made several excuses for his bullying. He argued that when he made the kill threat to Mr Green, he didn’t mean it. And that it needed to be considered in the context of his Korean culture, where such things are often said in jest. He also claimed that physical touching, like patting on the back, while counselling an employee was acceptable in Korea.
Fair Work Commission slams boss’ argument
When considering this general protections case, Fair Work Commission Deputy President Anderson found Mr Namkoong’s argument wanting. He said that it didn’t matter
Whether in the Korean culture physical touching is more acceptable or commonplace as part of employee counselling, or whether extreme threats are accepted as mere frivolity.
In the context of Australian workplaces there is no basis on which a business owner or manager, including a person of a culturally different background, can reasonably expect to physically handle let alone manhandle an employee.Deputy President Anderson
Fair Work Judge assesses severity of Mr Namkoong’s actions
As a key part of this general protections case, Deputy President Anderson next considered the severity of Mr Namkoong’s bullying. He said that his tendency to castigate Mr Green while placing his hand on his back was “unreasonable” conduct. With regard to the push that forced Mr Green to stumble, the Deputy President didn’t deem it to be “violent.” Although he found it to be “unnecessary and unreasonable.”
Deputy President Anderson stated that Mr Namkoong’s kill threat had to be considered in its “conversational context” and that it was a “stupid remark.” Ultimately, the Deputy President asked the question of whether Mr Namkoong’s pattern of behaviour gave Mr Green no option but to resign. He found that a “material risk existed that Mr Green could again be inappropriately touched or pushed by Mr Namkoong.”
Considering Mr Green’s alternatives to resigning, the Deputy President said that telling Mr Namkoong that his behaviour was inappropriate “risked creating workplace conflict with a senior manager.” He stated that it wasn’t “a realistic alternative. And that Mr Green had “no effective choice” but to resign.
Conclusion to: Employer says “kill” threat is his cultural right
It’s never ok to suffer bullying or sexual harassment at work – whether from your your employer, immediate boss or a colleague. That includes if the perpetrator “didn’t mean” to harm you, like in the case of Mr Green. Like in that case, it’s often difficult for employees to confront their employer about bullying or harassment they have experienced. Doing so, in many cases, runs the risk of subjecting them to further abuse or even losing their job.
Every employee has the right to a safe workplace, and if that right is taken away, you have the means to seek redress through the Fair Work Commission. If you are in a situation where you are being bullied or sexually harassed at work, but are afraid of speaking up, it’s best to get expert advice.
Employer says “kill” threat
We at A Whole New Approach can provide the guidance you need to take action and stand up for your rights. Over the last two decades, we have helped thousands of Australian workers make claims with the Fair Work Commission. Like Mr Green, we can help you make a general protections claim to ensure your harasser doesn’t get away scott-free. We are not lawyers but the nations leading workplace advisors and commentators. All workplace investigations, forced resignation, and employee or casual workers rights give us a call.
You can benefit from our no win, no fee service and a free initial consultation. Feel free to call us today on 1800 333 666.
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