As of 1 January 2014, the Fair Work Act has introduced several anti-bullying provisions. The Fair Work Commission now has the authority to hear claims about ongoing workplace bullying and may make an order to stop the bullying from continuing. It is a good time for employers to review their anti-bullying policies and procedures to make sure that they are aware of how the changes may affect their practice.
Bullying in the Workplace, prior to 1 January 2014
Prior to the introduction of the Fair Work anti-bullying provisions, there was a scattered approach to regulating bullying in the workplace. There were potential remedies for employees who had been subject to bullying under Work, Health and Safety laws, Workers Compensation, and discrimination and harassment laws. However these approaches only allowed an employee to take action after the bullying had already occurred. In comparison, the Fair Work anti-bullying provisions aim to stop bullying while it is still an ongoing issue.
Fair Work Anti- Bullying Provisions
As of 1 January 2014, the Fair Work Commission has the authority to hear claims by employees about ongoing bullying issues in the workplace and make a ‘stop bullying’ order. So what do these provisions tell us?
Definition of bullying: Bullying is defined as repeated, unreasonable behaviour towards a worker (or group of workers) that creates a risk to health and safety. Unreasonable behaviour refers to behaviour that a reasonable person, having regard to the circumstances, would see as unreasonable. This includes behaviour that is victimizing, humiliating, intimidating, or threatening. Bullying also requires actions to be repeated and ongoing and there must be something about the behaviour that creates a risk to the health and safety of the worker (or group of workers).
For example: One of the practice’s dentists repeatedly tells the practice’s dental hygienist that she is stupid and questions her knowledge and skill in front of patients. The dentist also makes these comments to other employees and encourages discussions that negatively comment on the dental hygienist’s working abilities. This workplace behaviour continuously occurs over a six month period. Even if the dentist believed that such comments were in fact reasonable, it may still be bullying; it depends on how the comments are being expressed. In this example, saying such comments in front of patients and to other practice employees would humiliate and intimidate the dental hygienist and create a working environment that could put the dental hygienist or other persons in the workplace at risk.
Reasonable Management Action: Employers should be aware that bullying does not include any action by the employer or a member of management staff that would be considered reasonable management action. For example, providing an employee with a warning or additional supervision for inattention whilst treating a patient may be reasonable management action. This could apply to the above example if the dental hygienist was in fact not working as required under her position. A one-on-one discussion and additional training and supervision from the Practice Manager could be reasonable management action in such a situation. However the above approach by the dentist of public humiliation in front of patients and other employees would not be reasonable management action.
Who can make a claim: Any worker within the workplace can make a ‘stop bullying’ application. This covers all persons who may be working in the practice, including employees, contractors, sub-contractors, labour hire performing work in the practice, apprentices, trainees, work experience students, and volunteers. The claim is both cheap and accessible, costing $67.20 per application and can be lodged at any time. The worker must still be working within the practice, and bears the burden to prove that ongoing bullying in the workplace has occurred, and that there is a risk that the bullying behaviour will continue to occur.
Commission Orders: The Commission can issue any order against those involved in the bullying matter that it considers appropriate to stop the bullying behaviour from continuing in the workplace. This is a preventative measure; providing an avenue to limit bullying risks to the worker. This could include logistical and practical changes to the workplace by the employer to ensure that breaches don’t occur, such as an order preventing the bully from being present in the practice building with the bullied person without other persons present. The Commission may take note of any investigations or workplace procedures that have been followed by the employer prior to the worker’s application to the Fair Work Commission but they cannot issue any orders relating to compensation or monetary payments. By Rebecca Hyde, Workplace Compliance Advisor at ClinLegal. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).
Important Considerations for Employers
- The Fair Work Commission is required to start dealing with a stop bullying application within 14 days of the application being made. An employer may have a short time frame to respond to any requests for information or other once Fair Work begins to process the application.
- If the alleged bullying behaviour is related to management action undertaken by the employer or management staff, the burden of proof falls on the respondent to provide evidence that such behaviour was within the realms of reasonable management action.
- Once a ‘stop bullying’ order is made, there is an obligation on all parties subject to the order to uphold this order. Any breach of the order may result in monetary penalties of up to $10,200 per breach for an individual and up to $51,000 per breach for a corporation.
- In making its decision about the repeated and ongoing nature of bullying behaviour, the Fair Work Commission can consider conduct that occurred prior to 1 January 2014 in order to prove that the bullying behaviour is repeated and ongoing.
- The abovementioned avenues to remedy workplace bullying are still in force. Bullying complaints and allegations can therefore still be actioned under claims of adverse action, unfair dismissal, anti-discrimination and harassment, and breaches of work, health and safety.
Recommendations
- Employers should inform themselves of the new anti-bullying provisions in the Fair Work Act, noting the definition of bullying in the workplace, and the difference between bullying behaviour and reasonable management action.
- Review workplace bullying policies and grievance procedures to ensure that they are consistent with the definitions and procedures covered in the Fair Work provisions.
- Ensure that all workers within the practice are aware of bullying policies and procedures, and the potential consequences if they engage in bullying behaviour.
- Encourage documentation of all management action taken against a worker to protect the practice should there be a bullying allegation against action exercised as a performance management strategy.
- Consider any bullying allegations or claims within the workplace as serious and investigate promptly and proactively to prevent a worker from feeling compelled to make a ‘stop-bullying’ application.
- Disciplinary action taken against an alleged bully must be backed up by a proper investigation process and procedural fairness, otherwise you may face a claim for adverse action, general protections or unfair dismissal.
For further information or advice, contact us at [email protected] or visit www.clinlegal.com.au