Employment Insights: Fair Work Commission lays down some markers on bullying

As lawyers we often hesitate in drawing definite conclusions on allegations of bullying, so the last thing we want is for a general article like this to embolden the bully or intimidate the victim. This is because the facts of each case are so critical. For a long time there was no national legislation prohibiting workplace bullying. This means if an employee claimed to be experiencing bullying, the only means of recourse was through occupational health and safety or workers compensation laws.

Changes in bullying framework

The Fair Work Act has been amended to introduce a number of anti-bullying provisions, which will commence on 1 January 2014.

Essentially, the Act will allow a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying. If the FWC is satisfied a worker has been bullied, and there is a risk that the worker will continue to be bullied, it may make an order to prevent the worker being bullied at work. The order may include an order requiring the individual or group of individuals to stop the specified behaviour, regular monitoring of behaviours and the provision of support by an employer.

The power of the FWC to make an order does not extend to the payment of compensation or a pecuniary amount. However, any contravention of an order may be dealt with by the Federal Court or Federal Circuit Court, which does have the power to order compensation and/or impose pecuniary penalties.

When is someone bullied?

The Act has adopted Safe Work Australia’s draft definition of bullying as ‘repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’. The Act also expressly says that bullying does not include ‘reasonable management action carried out in a reasonable manner’.

It is reasonable to conclude that ongoing behaviour from an individual or group of individuals that includes, for example, abusive language, ongoing criticism, isolating an individual or setting unreasonable timelines and tasks, may constitute bullying.

Although it remains to be seen how the FWC will assess bullying claims that are made under the new law, a recent decision of the FWC has signalled that the test for unacceptable behaviour will be set objectively.

In a recent unfair dismissal claim brought by an employee following termination of her employment after an employer found she had bullied a colleague, Commissioner Cloghan said:

…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 experience and personalities – not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is ‘guilty of bullying’ and ‘gross misconduct’. (H v WorkPac Pty Ltd [2013] FWC 4111, 30 July 2013)

Implications

The new workplace bullying laws mean companies must have an effective workplace bullying policy in operation. That policy should set out a clear procedure for employees to follow in the event they are feeling bullied, and must be familiar to everyone.

In order to be able to convince the FWC that ‘reasonable management action carried out in a reasonable manner’ was undertaken in relation to an employee, managers must make sure procedural fairness is afforded to employees. That includes raising issues at the time they occur, and providing employees the opportunity to respond to any concerns regarding their performance.

For more specific advice on this and other employment related issues, contact Sharlene Wellard.

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