In the November issue of Workplace Matters we considered the likelihood of an increase in work health and safety (WHS) legal risks as a result of the incoming anti-bullying laws. The new anti-bullying laws are now in operation. Although still in their early days, the Fair Work Commission's (FWC) new anti-bullying jurisdiction, headed by Commissioner Peter Hampton, has been busy: a significant number of applications (one per day) have already been received and the first decision was handed down by the full bench on 6 March 2014. In this article, we:
- consider the new laws in more detail and suggest how we think the FWC will interpret them
- explain the processes employers can expect to be kick-started if a bullying claim is lodged against them, and
- consider the implications for both employers and employees.
Scope of the new laws
The new workplace bullying laws form part of the Fair Work Act 2009 (FW Act), and empower a worker who has been bullied at work to apply to the FWC for an order that the bullying stop.
What constitutes bullying?
A wide range of behaviours may now constitute workplace bullying, including yelling at or belittling a worker, excluding a worker from work events, spreading rumours and imposing unreasonable expectations or deadlines. "Reasonable management action," carried out in a reasonable manner is specifically excluded from the definition of bullying. This will likely include appraisals of the worker's performance, disciplinary action, demotion or redeployment and reclassification of the worker's employment position.
The anti-bullying laws require that the behaviour complained of be sufficiently serious before it will constitute bullying: it must be both unreasonable and pose a risk to health and safety (physical or mental). It is up to the applicant to prove that the behaviour presents a health or safety risk.
The behaviour must also be repeated in nature. This means a one-off incident will not be captured by the new laws, no matter how severe. However, we anticipate that redress for serious one-off incidents will likely be able to be accessed through criminal assault laws and, in any event, would not be suited to the kinds of orders the FWC makes.
In addition to these statutory limits, there are also some indications that the FWC will take a cautious approach to claims. In the recent unfair dismissal matter of Karen Harris v WorkPac Pty Ltd, Commissioner Cloghan expressed a view that:
"the commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experiences and personalities —not divine angels."
Who can apply?
The new bullying laws have broad application. "Worker" is widely defined, extending beyond employees to individuals who perform work in any capacity, including contractors and subcontractors, outworkers, apprentices, trainees, work experience students and volunteers. The FWC can make orders against the individuals perpetrating the bullying, the employer, or others at the workplace. The Explanatory Memorandum to the Bill states that orders can also apply to others such as visitors to the workplace. This may, at least in theory, include union officials if they engage in bullying of, for example, workers, managers or sub-contractors. When a worker is taken to be "at work" is not defined, but is also likely to be widely interpreted, and will probably include out-of-work functions and working offsite.
In the first decision handed down in the anti-bullying jurisdiction, the FWC also confirmed that bullying behaviour that occurred prior to the introduction of the new laws can form the basis of an application. This further expands the scope of the anti-bullying jurisdiction, particularly in its early days. In this case, the FWC rejected a jurisdictional objection from an employer that bullying behaviour that occurred prior to the introduction of the new laws could not form the basis of an application. The Court took the view that although the legislation is not intended to be retrospective in effect, past bullying behaviour can legitimately found orders about the future, such as an order by the FWC that the bullying stop.
The resolution process
The FWC may resolve bullying claims through mediation, conciliation or determination. Decisions about how a case will progress will be made on a case-by-case basis. Some cases, such as those with complex or sensitive issues, may require further exploration of the facts before they are ready to be heard by a FWC member. Others, for example where serious bullying has occurred, may only be appropriate for resolution via determination.
Mediation is a method of alternative dispute resolution that often considers broader issues or grievances than a legal determination would allow. Given that bullying claims often involve complex interpersonal relationships and will ordinarily address emotional and personal issues, the anti-bullying panel will likely view mediation as appropriate.
If the application cannot be resolved through mediation, or is not suitable for mediation from the outset, it will be assigned by the panel head to a FWC member for determination. The determination process will generally commence with a preliminary conference to settle issues involved in the matter, identify the positions of the parties and confirm the approach for moving forward. If the matter does not settle, the determination process will conclude with a formal hearing in which the FWC member applies the law to the facts and makes binding orders.
The new bullying laws are not the only legal obligations arising from bullying behaviour in the workplace. Bullying behaviour in the workplace also puts employers at risk of claims related to:
- unfair dismissal
- adverse action
- sexual harassment
- discrimination, and
- work health safety.
Consequently, multiple actions may be taken about the alleged bullying behaviour. For example, a worker could lodge an application with the FWC under the anti-bullying provisions and also make a complaint under applicable WHS laws. They may also make an application under other provisions in the FW Act, such as the general protections provisions, if they suffer adverse action, dismissal or discrimination as a result of raising the bullying as an issue.
Implications for employers
The broad application of the new anti-bullying laws means that a claim could potentially be made by almost any individual at the workplace. The often serious impact of bullying conduct on victims and the potential for it to be ingrained in the work culture, complicates the risk and compounds the difficulty of complying with any order made by the FWC.
Consequently, a whole of business approach should be taken by employers to manage potential bullying claims. Employers need to take steps to implement appropriate policies and procedures to prevent and deal with bullying complaints, should they arise.
- Positive culture: Ensure that the workplace has a positive culture in which bullying is not tolerated at any level.
- Anti-bullying policy: Implement and promote an anti-bullying policy. As bullying can occur through many different forums, consider if the policy should cover interactions on social media or interactions outside the immediate workplace.
- Information and training: Provide workers with information, training and supervision on how to identify and deal with bullying. Bullying can be covert and subtle, so the preventative measures need to cover behaviour like the silent treatment, setting of unreasonable deadlines or upward bullying. It is also important to be clear about what behaviour does not constitute bullying (e.g. reasonable management action).
- Complaints procedures: Establish clear procedures for dealing with complaints. This will save setting up procedures "on the run" if and when complaints occur. Your procedures can attach useful precedents, such as a draft investigation report, a draft statement and a guideline to writing allegations. If you already have current procedures and believe they are satisfactory, then consider giving them a test run through a mock incident. The results may be surprising.
- Legal professional privilege: Establish an early optional step to create legal professional privilege over some or all documents. Remember that the FWC may require the production of relevant documents and the attendance of relevant witnesses. Also consider the legal rights of managers and workers who might ultimately be required to give evidence suggesting they personally have committed a civil or criminal offence.
Responding to complaints
Once a complaint is made, employers should respond quickly to the claim. The following measures are recommended:
- Investigate and document: Investigate and document actual complaints promptly and thoroughly. Any perception of tardiness or incompetence on an employer's part may prompt the FWC to make an order against them. The investigation should include a process for any follow up actions required. If no bullying actually occurred, explain this finding. If there is no risk that bullying will continue, explain why. A quality investigation will help demonstrate to the FWC that the complaint is being dealt with in a reasonable and balanced manner and there is no need for the FWC to intervene.
- Settlement options: Although the FWC may not make orders for compensation payments, workers or their representatives may still approach the employer with demands for payment under threat of taking other legal action. Carefully consider settlement options and obtain a full release if necessary.
- Monitoring: Regularly monitor and review the success of prevention measures by taking an overall risk audit approach to bullying. Track the number and nature of complaints and consider near misses, trends, location and patterns. These can then be benchmarked across the organisation to inform whether the preventative measures are working well.
Implications for workers
Workers should be mindful of their behaviour at work and its potential impact on colleagues and other people they come into contact with. Workers need to be aware of, and comply with, any policies regulating workplace conduct or bullying.
If a worker perpetrates workplace bullying, an application to the FWC could result in orders being made personally against that worker.
The conduct could also result in internal disciplinary procedures, and depending on the circumstances, in termination of the workers employment. Because multiple claims are permitted, there is also the possibility that other legal claims could be made personally against any worker found to be engaging in workplace bullying.
If a worker is subject to workplace bullying, an application to the FWC could be beneficial in circumstances where bullying is serious and ongoing, and where an objective, judicial process overseen by an external adjudicator is preferable to an internal process. However, it is important to understand that the onus is on the applicant to satisfy the FWC of the required matters. Further, the FWC is only able to make orders that the bullying conduct complained of stop. Consequently, this jurisdiction is not suitable where the bullied worker seeks compensation, or where the worker intends to cease working for the employer.
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.