Anti-bullying provisions were introduced for the first time in the Fair Work Act in January 2014.  Those provisions were designed to be preventative rather than compensatory – that is to say, their aim is to stop the bullying before substantive loss or injury occurs.

The new provisions do not limit a potential claimant from pursuing any cause of action that would previously have been available to them.  Notwithstanding that allegations of bullying often form a substantial part of litigation, there is no such thing as a cause of action in bullying.  A claimant must fit their particular bullying situation into one of the existing causes of action.

A common example is where an employee is bullied to such an extent that they suffer an injury – either physical, psychological or both.  In very serious cases, the police may charge the bully with a crime.  More often, the bullied person is unable to work as a result of their injury, leading to them commencing a workers compensation claim.  This will often involve an allegation that their employer did not take reasonable care to avoid the injury occurring – for example, that the employer failed to take active steps to stop the bullying from occurring or failed to implement policies and procedures to minimise the risk of bullying.

Where an employee has been bullied, an employer can be prosecuted by WorkSafe for breaches of their occupational health and safety obligations.  The employer is obliged to, so far as is practicable, provide and maintain a working environment in which its employees are not exposed to hazards – bullying is such a "hazard".

If a breach is proved, the Court can issue substantial fines on the employer.  If the offence occurred with the "consent or connivance" of a director, manager, secretary or other officer of the employer, or it was attributable to some neglect on their part, those individuals can be found personally liable.  If found guilty, they can be fined or imprisoned.  This personal liability is expected to be widened once WA amends its occupational health and safety laws in line (with some exceptions) with the Federal model that has been adopted elsewhere.

Allegations of bullying also arise where an employee is terminated.  That employee may make a claim for unfair dismissal, saying that whatever behaviour led to their termination was the result of bullying – either from the employer themselves or another employee.  Similarly, a terminated employee may make a general protections claim, arguing that there has been 'adverse action' against them as a result of discrimination or the denial of a workplace right.  This usually occurs where the bullying is of a discriminatory nature – that is, related to age, race, colour, national extraction, social origin, physical or mental disability, marital status, pregnancy, religion, family or carer's responsibilities, gender, sexuality or political opinion.

The common thread of the examples given above are that the damage has already occurred.  The bullied employee is seeking to recover compensation for losses suffered.  The aim of the new bullying provisions are to stop the bullying as quickly and effectively as possible and thus avoid the need to seek compensation at all.

The anti-bullying provisions allow a bullied employee to make a complaint to the Fair Work Commission (FWC), which is then obliged to commence an investigation within 14 days.  The FWC has very broad powers to stop any bullying that is taking place, although it specifically can not make orders for financial compensation.  The provisions are preventative, meaning that if, for example, it is clear that bullying has taken place but there is no significant risk of it happening again in the future (say, because the bully has left the employment), the FWC cannot intervene.

A recent bullying application against DP World and the Maritime Union of Australia1 provides a useful insight into how the FWC will deal with systemic bullying – that is, where the bullying cannot be stopped without substantive changes to the culture and structure of the enterprise as a whole.

One of the issued address in this case was the "Code of Silence" that existed at a particular terminal operated by DP World, where anyone who made complaints to DP World would be ostracised in the workplace.  It was not disputed that a Code of Silence existed at the time of the bullying incidents but DP World argued that it had effected substantial change since then, such that the Code of Silence had been effectively eliminated from the workplace.  The FWC did not accept this, both because the evidence led did not support it and because it "stretched the bounds of credulity" to suggest that a "pervasive culture of not making complaints" has "been transformed into a panacea where employees feel unencumbered in making complaints and co-operating with their employer by providing information to their employer during workplace investigations or other processes deployed to deal with workplace issues."2

The question then became the orders that the FWC should make to prevent the workers from being bullied upon their return to work.  This was not, as it is with many bullying cases, simply a matter of keeping particular individuals separated or restricting methods of communication between individuals.  This was a systemic issue involving many people and an ingrained culture developed over a significant period of time.  The FWC ultimately proposed orders3 against DP World along the following lines:4

  • Arrange a risk assessment and return-to-work plan, with a Work Safe Victoria inspector present, and to implement and assess any control measures identified;
  • Arrange training of any management personnel who are likely to be required to investigate complaints about workplace bullying at the particular terminal involved and to commission, prepare and deploy for use by managers a workplace investigation instruction manual; and
  • Review and amend its DP World Employee Handbook 2013 and its Workplace Behaviour Policy to ensure they make clear that workplace bullying is an occupational health and safety issue, that bullying allegations needs to be properly investigated and that employees have a duty to assist with those investigations.

Ultimately, whilst the anti-bullying provisions may assist in stopping bullying from becoming a more serious problem, the aim of any employer should be to eliminate bullying before it begins.  This requires the development of a culture that naturally results in the reduction or elimination of bullying behaviour, as well as the introduction and implementation of systems in which allegations of bullying are thoroughly, efficiently and effectively investigated and appropriately acted upon.

Footnotes

1 Bowker & Ors v DP World Melbourne Limited & Ors [2015] FWC 7312
 2 at [31]
3 DP World were given a period of time to advise the FWC whether it wished to be heard on the proposed orders – it is not clear at this stage whether DP World have sought to be heard and thus whether the proposed orders have in fact been made
4 The full text of the proposed orders appear at [116]

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