Publications / Employment
New Fair Work Commission Bullying Jurisdiction
We have all heard the statistics: workplace bullying is costing the Australian economy between $6 billion and $36 billion each year and workplace bullying cases cost employers an average of $17,000 to $24,000 per claim.
No employer or employee wants bullying in their workplace, and the best legal advice we can give is that prevention is key to both stamping out bullying when it arises, to protect employee health, safety and well being, and being in a sound legal position if your company does end up before the Fair Work Commission (FWC). This will help to protect your business and its brand.
It sounds obvious doesn’t it? But what does ‘prevention’ mean from a legal perspective and what strategic steps should employers be taking in light of the new anti-bullying laws that commenced on 1 January 2014?
Understanding the new bullying laws
Before you can train your staff and management team, you need to know what bullying is, and what it isn’t, under the new laws.
Bullying definition and employer defence
Under the bullying amendments in the Fair Work Amendment Act 2013 (Cth), behaviour will be considered ‘bullying’ if it occurs at work, is repeated, unreasonable and creates a risk to health and safety. Interestingly, a single incident of unreasonable behaviour won’t fulfil the bullying criteria, and there is an exception for ‘reasonable management action taken in a reasonable way’ that employers should be aware of. We expect this exception will be used a lot as a defence to claims involving performance management issues that have been interpreted by the employee as bullying. However, the key to effectively utilising this defence will be in making sure the management action was indeed ‘carried out in a reasonable way’.
Application and process
From 1 January 2014, a worker who reasonably believes that they have been bullied at work can apply to the FWC for a stop bullying order. The definition of ‘worker’ is very broad and includes everyone from employees, contractors and subcontractors, to apprentices, volunteers, work experience students, and trainees; it could even include a non-executive director of a company. The FWC then must begin to deal with the application within 14 days, which will hopefully encourage quick resolution of matters in line with the FWC’s focus on resolving issues in order to enable normal working relationships to resume.
Interestingly, although the bullying has to happen at work, there is no requirement for the bully to be a worker. This means, for example, that the FWC could make orders for union officials to stop bullying individual workers. Other orders could involve counselling, transfer or change of roster, requiring an apology, or requiring the company to review and improve their bullying policies. It is critical to note that the FWC cannot make orders involving financial compensation, so employers should not be pressured into financial settlements or paying ‘go away’ money. Orders can also only be made if there is a risk of bullying continuing; so ex-employees will have to make claims via other avenues such as unfair dismissal, general protections or discrimination claims, depending on the circumstances.
20/20 hindsight - Strategic considerations you need to know now
Check your workplace policies and procedures
So often, employers have excellent policies but they are practically useless if your management team does not implement them. In any case, you should check your workplace bullying policy to make sure it is up-to-date under the new laws and includes a workplace investigation procedure that provides procedural fairness and takes all complaints seriously.
Paperwork. Paperwork. Paperwork.
Your documentation of performance management issues, employee files, complaints made and actions taken will be your evidence before the FWC so make sure your records are accurate and reflect your compliance with both the law and your policies by documenting the context and reasons for your management decisions. Put it this way: it will be extremely hard to prove ‘reasonable management action’ was taken in response to performance related issues when there are no complaints noted on an employee file and their performance review is glowing.
Resources and exposure to multiple claims
Although there are no financial penalties available, appearing before the FWC (even with no legal representation) costs all businesses time and valuable resources. If the new bullying jurisdiction does eventually take off as forecasted and becomes the new external mediation venue for employees who feel their complaint has not been adequately dealt with internally, your HR team as well as any supervisors and other workers and alleged bullies could suddenly become very busy attending the FWC for conciliation conferences and/or to give evidence at a hearing. It is easy to see how this could be crippling for small businesses. It is also noteworthy that lodging a stop bullying application does not preclude a worker from taking other legal action. It is foreseeable that employers could potentially face a bullying application, a workers compensation claim, investigation by the WHS regulator in your state, as well as a discrimination claim (if applicable), all at the same time.
In summary, as an employer you must take responsibility for ensuring your policies are legally compliant and are actually implemented by your management team in the event of an incident, rather than a piece of paper shoved in a drawer and never read. Taking a serious stance against bullying in the workplace will not only protect you legally but also create a happy and healthy workplace that will save you money across the board and stop your company from being another statistic.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.