New laws prohibiting workplace bullying are now in force.
Amendments to the Fair Work Act 2009 (Cth) define bullying, harassment or victimisation as "repeated, unreasonable behavior directed towards a worker or a group of workers that creates a risk to health and safety."
Claims of bullying can be lodged by:
- employees
- contractors
- subcontractors
- trainees
- volunteers
- work experience students.
Allegations of bullying can be referred to the Fair Work Commission. This can deal with the complaint by:
- referring the matter to the relevant State's work health and safety regulator; or
- making orders to deal with the complaint on a final basis.
The Fair Work Commission can impose on employers penalties of up to $30,000 and make orders to resolve the complaint and prevent further bullying.
An employee wishing to lodge a complaint may be encouraged by the new laws to lodge their complaint with the Fair Work Commission rather than going through the employer's internal processes. The Fair Work Commission is a "no costs" jurisdiction so that, even if the complainant is unsuccessful, the employer remains liable for its own costs of defending itself before the Commission.
A defence to an employer accused of bullying is that the employer's actions constituted "reasonable management action carried out in a reasonable manner." Employers should ensure that performance reviews and management of staff are handled in a way to guard against allegations of bullying and provide a defence in the event of a complaint.
You should:
- prepare and implement an effective workplace bullying policy which includes a definition of "workplace bullying" and a statement that workplace bullying is unlawful
- ensure that your complaints handling process includes a procedure for dealing with bullying complaints
- make clear to employees the consequences for those who have engaged in bullying and those who have experienced bullying
- ensure that your performance management processes are fair and reasonable and are exercised in a fair and reasonable manner.
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.