Flat Chat Strata Forum Strata Committees Current Page

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  • #8340
    Anonymous

      I tried to address certain behaviours in my apartment block and in doing this have made some others here angry it seems.

      I read this clear information on my strata manager company’s web site and emailed our strata manager personally asking for more information: “If you’re on an executive committee and someone reports an incidence of bullying to you it must be taken seriously. Bullying creates a risk for the health and safety of the person or group of people it’s affecting. As a committee member you may also be held personally liable if you are aware of certain behaviour but did nothing to address the issue.”

      He has not replied to my email and four additional emails and refuses to take my calls. I simply asked how to ask my committee for help and how they could be “held personally responsible” if they don’t help.

      Can any readers here explain please? 

      Isn’t it terrible that this, large strata manager, can simply ignore not reply to a question about information stated his own company’s web site. 

    Viewing 12 replies - 1 through 12 (of 12 total)
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    • #16278
      Jimmy-T
      Keymaster

        It may be that they are just trying to find out what’s been going on or it could be that the person you are writing to doesn’t have a clue what they are supposed to do about the material on their website.

        However, generally the Strata Manager is answerable to the Executive Committee in the first instance and the Owners Corp ultimately. They don’t have the same obligations to respond to individual lot owners (or they would spend their lives chasing individual queries).

        If the Strata Manager and the EC won’t address the issues, you should approach Fair Trading about arranging a mediation.

        The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
        #16311
        Anonymous

          Thank you for the reply JimmyT. I been looking around and have found it is a habit of this strata manager company to just not reply or do anything to fix a difficult problem. It does not see right.

          #16770
          Anonymous

            I have had no luck with this question so I’m trying again. Save time! Don’t bother reading more in this topic but please help if you can.

            The following appears on a Strata Managing’s web site under the heading of ‘Bullying’ but not in any particular context such as ‘in meetings’ or ‘on common property’:

            “As a committee member you may also be held personally liable if you are aware of certain behaviour but did nothing to address the issue.”

            I note ‘bullying’ is topical at the moment and its logical an Executive Committee and also Strata Manager, who may have all possible powers signed over to them, would have a ‘duty of care’.

            How might an Executive Committee member and Strata Manager be ‘personally liable’ can anyone suggest please?

            #16775
            Austman
            Flatchatter

              What does the OC Act (NSW) say?  In Victoria, committee members have immunity:

               

              118 Immunity of committee members

              (1) A member of a committee or a sub-committee is not personally liable for anything done or omitted to be done in good faith—
              (a) in the exercise of a power or the carrying out of a function under this Act or the regulations; or

              (b) in the reasonable belief that the act or omission was in the exercise of a power or the carrying out of a function under this Act or the regulations.

              (2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a person, attaches instead to the owners corporation.

               

              I suspect it would be similar in NSW. 

              #16782

              Both Strata law and common law exist side-by-side.

              Your question is a common law one.

              I am going to assume that neither the EC nor the SM are the ones doing the bullying….

              So all other cases would have first had to go before the courts to determine an instance of bullying occurred or a systemic pattern of bullying occurred within the strata scheme. During that time the court may involve the EC and SM. Even if these individuals are cleared of wrongdoing, the insurance may choose not to pay costs based on what it believed the EC ought to have done with respect to the WHS act/good faith, etc in which instance there starts to be this notion of ‘personal liability’ that the website lists.

              Realistically, for the statement to have much stick, the scheme would need a building manager or other permanent employee that bullied residents, or the EC bullied residents, etc, etc. In short, it is a very grey area.

              I can’t see too many instances of where a dispute between neighbours or exclusion by the SM would end up as shared liability for individual EC members, which is what I think your question is ultimately asking.

              #16783
              Anonymous

                Thank you indeed Mattb for your welcome and very clear and concise reply.

                You are right on all counts and from what I’ve gleaned in a short amount of time, there is indeed a lot of ‘very grey area’ as you say. Also these things can take years to play out legally, cost fortunes then get nowhere. Meanwhile the bullying can just go on because the bullies know this better than their victims.

                There is no question the bullying is facilitated by and encouraged by both the Executive Committee and the Strata Manager. It is carried out and perpetuated by feral residents, some of whom are previous EC members who know how powerless the victims are. (I am not the only one I have discovered.) While there would be some suggestive paperwork, of course, there is no easily attainable, usable, definitive evidence apart from hearsay and diary entries and such.

                BUT… I am still curious about that paragraph on the Strata Manager’s web site, here it is again: ”If you’re on an executive committee and someone reports an incidence of bullying to you it must be taken seriously. Bullying creates a risk for the health and safety of the person or group of people it’s affecting. As a committee member you may also be held personally liable if you are aware of certain behaviour but did nothing to address the issue.”

                It is difficult to believe Executive Committee members and Strata Managers do not have some sort of ‘duty of care in this regard’. The term is Owners ‘CORPORATION’, after all. 

                I am not rich at all, but sadly maybe a few hundred dollars spent with a lawyer might be worth it. It should not have to come to that!

                #16784
                Austman
                Flatchatter

                  But the question was specifically:

                  “As a committee member you may also be held personally liable if you are aware of certain behaviour but did nothing to address the issue.”

                  So it’s really OC related.  And I think it’s bluff. Committee members have immunity when acting in good faith.  In which case it will be the OC that is liable for an act or omission by a committee member.

                  #16785
                  Jimmy-T
                  Keymaster

                    The idea that ECs have to deal with owner to owner bullying seems to go way beyond anything allowed for in the strata act.  There are plenty of options available to individuals who want to protect themselves against bullying, not least of which is an Apprehended Violence Order.

                    However, if the bullying is by the EC or actively condoned by the EC, they may find that their EC Members’ Insurance coverage has just sailed out of the window – in which case they could be liable individually for any damages that might be awarded by a court.

                    But to answer the original question, the answer to being bullied is to collect evidence, get sworn supporting statements from friends and neighbours then threaten legal action (such as an AVO).  But only make that threat if you are prepared to follow it through – the world is full of people threatening to sue each other when both sides know that’s not going to happen.

                    By the way, the EC should get involved if the bullying involves any breaches of by-laws such as the playing of loud music or abusive behaviour on common property.  And perhaps that’s where the duty of care comes in.  But it’s primarily about the by-law breach, not the intent.

                    The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                    #18955
                    ccbaxter
                    Flatchatter

                      At my strata, an owner who is much less civilized and sensible than the rest got herself onto the Executive Committee. She harbours a grudge against me for reasons I need not go into except it relates to a legally and morally correct decision a previous EC made when I was a member years ago. Fact is, I sought mediation twice through the Community Justice Centres but she would not participate. That was alao years ago.

                      Yesterday, as we both returned to our respective abodes at the same time, she gave me the bird in an aggressive fashion for no immediate reason. Maybe she was drunk or buoyed by some other substance.

                      I have always suspected she is the schoolyard bully type. I would like to take some minor action to nip things in the bud such as write to the Strata Manager, the Chairman, the Secretary or something. I would appreciate any suggestion about what I might do.

                      #18984
                      ccbaxter
                      Flatchatter

                        If anyone’s interested I was told today by a lawyer (not an expert ‘strata lawyer’) that I could perhaps mount a civil case using as a basis the NSW Workcover rules about work place bullying. That is to say, the owner is on the Executive Committee and the EC (or the OC) and maybe the Strata Manager maybe vulnerable. To be continued.

                        #18992

                        @ccbaxter said:
                        If anyone’s interested I was told today by a lawyer (not an expert ‘strata lawyer’) that I could perhaps mount a civil case using as a basis the NSW Workcover rules about work place bullying. That is to say, the owner is on the Executive Committee and the EC (or the OC) and maybe the Strata Manager maybe vulnerable. To be continued.

                         

                        I will go out on a limb here and say that the assumption is tenuous at best.

                         

                        Even if you could draw a clear line between your bully and her position on the EC as either a worker or a PCBU under the WHS laws, you would need to determine, and hence define, that the OC itself is ‘work’ or an ’employer’ because the ultimate WHS liability rests with an organisation. This idea of a ‘workplace’ is central to the WHS act and bullying. An OC defines (primarily) a collective where people live. And, even if yours is a mixed use scheme: your interface with the OC is always around a question of where you live, and not where you work.

                        As for drawing your strata agent into all of this from the point of view of liability, again, you would need to determine (after having defined your OC as a workplace rather than a place where people live) that your strata agent was not in fact employed by the OC to carry out only the administrative functions, but rather implicitly or explicitly led the EC/OC to condone the bullying.

                        This of course won’t fly as the OC is the higher authority in this entire argument and WHS responsibility rests with them, so in effect, you will end up suing yourself and your neighbours and your increased levies will cover the cost of this action.

                        Lastly, the WHS act specifically excludes strata schemes from PCBU definitions, unless the scheme employs one or more people directly such as a concierge or caretaker. Even then, the PCBU extends only to workers themselves and the person employing them: so the caretaker could lodge a bullying claim against you and the OC, but you could not lodge a bullying claim against the caretaker or anyone else on the OC.

                         

                        The term bullying is an over-used one: you are experiencing a neighbourly dispute – two people living in close quarters who simply don’t get along. Such disputes are just as common in free standing houses as they are in a strata scheme, so the avenues of redress are identical. Go get a restraining order, pursue civil action against her, call the police if she breaks the law and so on, but it is your responsibility and not the responsibility of your strata scheme or your strata agent to ensure that everyone co-exists happily.

                        #18995
                        Jimmy-T
                        Keymaster

                          ccbaxter said:

                          Yesterday, as we both returned to our respective abodes at the same time, she gave me the bird in an aggressive fashion for no immediate reason … I would like to take some minor action to nip things in the bud such as write to the Strata Manager, the Chairman, the Secretary or something. I would appreciate any suggestion about what I might do. 

                          This would come under unacceptable behaviour on common property and you could ask the EC to issue a Notice To Comply … but only if there were witnesses to back you up.  Otherwise it’s just your word against hers.

                          You could raise a motion at the EC to the effect that residents are reminded that the by-laws forbid offensive behaviour on Common Property.  Or you could confront her in front of witnesses and ask her what exactly the gesture meant as you have never seen it before.

                          Or you could let it go … fret over it and she has won.  

                          With that in mind, I offer you the three pieces of wisdom by which I try to live these days.

                          1. Sit by the river long enough and the bodies of your enemies will float past.

                          2. If you go seeking revenge, remember to dig two graves.

                          3. Never do anything from short-term anger that will cause long-term pain. 

                          The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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