Fair Work Commission – A New Forum for Workplace Bullying Complaints

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From 1 January 2014, employees will be able to take action in the Fair Work Commission if they consider they are the subject of Workplace Bullying.  This article discusses these legislative changes.

What is Bullying?

Currently in Australia, there is no generally accepted definition of bullying.  It is defined or described in various jurisdictions by courts, government bodies and other organisations, in a range of different ways.  However, the common elements of workplace bullying appear to be:

  • Unreasonable, repeated behaviour;
  • Occurs in the workplace; and
  • Creates a risk of psychological or physical harm.

Bullying can affect anyone.  It can be among co-workers, managers and workers, workers and customers, clients, contractors, work experience students and others within a workplace.

The impact of workplace bullying causes distress, anxiety, panic attack or sleep disturbance, reduced work performance, loss of self-esteem and feelings of isolation, deteriorating relationships with colleagues, family and friends, depression and thoughts of suicide.

Organisations can be affected adversely with high staff turnover, low morale and motivation, as well as increased absenteeism.

In case law, examples of a few bullying scenarios include:

  • Aggressive or frightening behaviour (e.g. shouting or threatening or engaging in violence);
  • Threats of assault against a work colleague or damage to their property or equipment;
  • Rude or belittling comments; and
  • Standing in someone’s way or deliberately blocking their path in an intimidating manner.

What are the current options regarding Bullying complaints?

Currently, employees who consider they are the subject of workplace bullying have the following legal recourses:

  1. Anti-discrimination and harassment law for any bullying attributed to a person’s sex, race, disability or another established ground of discrimination;
  2. Occupational health and safety law;
  3. Workers compensation law that allows compensation claim for injury.  In Queensland, WorkCover claims include psychological injury that may arise from workplace bullying;
  4. Criminal law, where the conduct of bullying is criminal in itself, such as stalking or threatening, or abusive words (in an act) itself; and for
  5. Common law negligence claims against employer(s) alleged breach of the employer’s duty to take reasonable care for the safety of its employees.

Following a recent change to the Fair Work Act 2009 (the Act), from 1 January 2014 there will be an additional option of taking a complaint to the Fair Work Commission (FWC).

Making an FWC Complaint for workplace bullying

The section in the Act, relevantly titled ‘Workers bullied at work’, allows a worker(s) who has been bullied at work to apply to the FWC for an order to stop the bullying.

A worker is bullied at work if, while the worker is at work, an individual or group repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

However, reasonable action by management carried out in a reasonable manner is excluded.  This mirrors the existing Work Cover legislation.

Some examples of reasonable management actions include:

  • Setting of reasonable workplace goals and standards, including work deadlines;
  • Reasonable supervisory practices; or
  • Reasonable work performance assessment, counselling and disciplinary practices.

The Act sets out the anti-bullying complaint process.  It is intended to be straightforward, informal and user-friendly.  It allows:

  1. An aggrieved worker who reasonably believes that he/she has been bullied at work to apply to the FWC for an order;
  2. The aggrieved worker fills out an application form and pays the prescribed fee;
  3. Once the application is lodged, FWC is to deal with the application within 14 days;
  4. The FWC can either host a conciliation and/or a mediation conference, or it may proceed to a hearing;
  5. Upon determining an application, the FWC can make recommendations, express an opinion or make an Order;
  6. The FWC in making Orders must consider appropriate measures (other than requiring payment of a pecuniary amount) to prevent the worker from being bullied at work;
  7. Orders may also include redeployment or compensation.

Implications for Employers

In our Employment law practice, we are seeing, and needing to respond to, frequent allegations or complaints of workplace bullying.  The changes to the FWA give employees a new (and quick) avenue to pursue.  We anticipate that many employees will use it, particularly as a strategy to forestall or delay performance improvement processes.

Employers need to be prepared for this, particularly when embarking on Performance Management processes with employees.  Clear documentation should be kept, to demonstrate that action take is ‘reasonable management action.’

If you are served with a FWC Workplace Bullying application, we recommend you take legal advice as soon as possible, particularly given the short timeframes.