A recent report by a Senate inquiry, "Workplace Bullying:
We Just Want it to Stop" has drawn attention to the personal,
financial and health-related costs of workplace bullying.
For employees the experience of bullying can have a devastating
impact on feelings of self worth and psychological and physical
wellbeing. For employers costs can include staff turn over,
productivity loss, damage to workplace culture and, in some cases,
significant legal costs and adverse publicity. In a recent decision
the Victorian Supreme Court awarded an employee almost $600,000 in
damages due to an employer's failure to act in relation to the
sustained workplace bullying of one of its
Bullying applications to be heard within 14 days and
simple new definitions of "bullying" and
Government's proposed new anti-bullying measures in the form
of recent amendments to the Fair Work Act 2009 (Cth) (which
commence from 1 January 2014) create new avenues of recourse for a
worker who reasonably believes him or herself to be the subject of
workplace bullying. In particular, a worker will be able to seek an
order from the Fair Work Commission (FWC) that the bullying stop
and the application must be heard within 14 days of being made.
Importantly, there will be a new national definition of
"workplace bullying" and the definition of
"worker" is wider than an employee including for example
contractors and their employees.
Reasonable management action (e.g. performance management) is an
exception to bullying.
Stop orders and civil penalties for
To address a bullying complaint, the FWC may make any orders it
considers appropriate, other than an award of money, to stop the
bullying. If an employer does not comply with an anti-bullying
order the employer can be exposed to a penalty (up to $51,000 per
offence for companies and $10,200 for individuals).
When considering the terms of any order, the FWC must take into
account factors including:
any final or interim outcomes arising out of an investigation
into the matter; and
any procedure available to the worker to resolve grievances or
These new changes make it vital that employers take appropriate
steps to respond to complaints of bullying and investigate (where
appropriate) efficiently. Depending on the seriousness of the
complaint, an external investigator and legal advice may be
desirable meaning that employers will need to act swiftly. The
changes also make it crucial that employers have robust policies in
place which address bullying in the workplace and that employees
receive appropriate training on these policies.
Given the rise in bullying via social media and other electronic
communications (such as 'flaming' through email), employers
also need to ensure that appropriate social media and electronic
communications policies are implemented and enforced. Relevant
policies should encourage the notification of complaints of
workplace bullying through the appropriate channels.
Lessons for employers
The new laws commencing on 1 January 2014 are significant and
have far reaching implications for employers.
Before 1 January 2014, employers should:
familiarise themselves with the new workplace bullying
review, and in particular update, existing bullying policies,
bearing in mind they may be subject to review by the FWC;
ensure their employees have received appropriate bullying
consider their complaints and investigation processes; and
treat bullying complaints seriously as an employee can bypass
internal processes and lodge a complaint with FWC.
How HWL Ebsworth can help
HWL Ebsworth can undertake a review of your bullying policy to
ensure it complies with the new workplace bullying laws and can
provide training to both management and employees on the new laws
and the changes needed in the workplace.
1Swan v Monash Law Book Co-operative
 VSC 326
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).