WHAT IS BULLYING AT WORK?
Bullying is defined by the legislation as occurring when:
- a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; and
- the behaviour creates a risk to health and safety.
Importantly, there is an exemption for behaviour that constitutes reasonable management action carried out in a reasonable manner. For example, if the behaviour the worker is complaining about constitutes reasonable performance management or disciplinary action, it is likely the exemption in the legislation will apply to the employer who can raise this as a defence to a bullying claim.
WHAT IS THE NEW PROCESS?
From 1 January 2014, workers who consider that they have been the victims of workplace bullying will be able to make an application to the FairWork Commission by filing an application form and paying the application fee of approximately $65. Once the application is lodged, the Fair Work Commission will commence dealing with the application within 14 days which will mean that the Commission may commence investigating the matter, contact the employer for information or direct the parties to attend a conciliation conference in the Commission.
The people that may be served with an application by the affected worker could include:
- the employer
- the alleged bully (who may or may not be a co-worker of the applicant - for instance, the applicant may allege that they are being bullied at work by a client or a contractor);
- any third party involved (for instance, if the victim is employed by a labour hire company both the labour hire firm and the client where the worker is placed may be served with the application).
Once a party is served with the complaint they will have 7 days within which to respond to the complaint.
An employer should make sure that they include details of any internal process or procedure available to the applicant in relation to a workplace bullying complaint - that is copies of any policy documents, grievance procedures or specific investigations that have been undertaken in relation to the matter.
Additionally, an employer may have a defence of reasonable management action or may be able to argue that the worker concerned is not covered by the National Workplace Bullying laws. Specific legal advice about these issues should be sought prior to completing the response forms.
MEDIATION
If the FairWork Commission considers the matter is appropriate, the parties may be invited to attend mediation to help resolve the matter in an informal, confidential and voluntary way. Importantly, the Commission has indicated that it will not be promoting monetary settlement of the applications. More likely, settlements will involve apologies, commitments to further training, commitments to developments of appropriate policies and procedures and perhaps an agreement that the employer will provide ongoing monitoring of the situation. Again, nothing can be compelled in the mediation process and parties must agree to outcomes prior to any settlement document being signed.
HEARINGS AND ENFORCEMENT
If the matter is either not referred to mediation or is deemed not appropriate for mediation, a formal hearing may be held at which evidence will be led by both parties and the Commission will make ultimate determinations as to whether or not bullying has occurred and whether or not it is appropriate to make an order that the bullying cease. The orders that can be made might include:
- requiring the individual or group of individuals to stop the specified behaviour;
- regular monitoring of behaviours by an employer or principal;
- compliance with an employer's or principal's bullying policy;
- the provision of information, additional support and training to workers; and
- review of the employer's or principal's bullying policy.
A failure to comply with an order made the Commission may result in a disgruntled party seeking to enforce the order by way of the civil remedy provisions of the Fair Work Act in the Federal Circuit Court or the Federal Court. There can be penalties awarded against both corporate entities and individuals who failed to comply with the Commission's orders.
WHAT TO DO NOW?
Employers should proactively review their existing workplace bullying and harassment policies and procedures to ensure that they are up to date with the requirements of the new legislation.
Ideally, workers should be made aware of the existence of these policies and reminded of the available internal process for bringing a complaint forward. It would also be worthwhile for businesses to consider reviewing their insurance policies to make sure that they cover these new types of claims for directors and officers as necessary and also review their contractual arrangements with third parties so that liability with respect to any bullying by contractors' personnel can be appropriately allocated.
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.
