It’s been more than six months since the Fair Work Commission’s anti-bullying measures came into force and the predicted onslaught of applications has yet to materialise. We look at the trends that have arisen from the changes.
When the Fair Work Commission announced its new bullying measures, there were predictions of 67 bullying complaints per week.
Six months on, those fears have proved unwarranted. A report from the commission showed that only about 150 applications were made in the first quarter of the year.
HopgoodGanim partner Andrew Tobin, associate Abigail Vipond and trainee solicitor Adele Garnett said that while the jurisdiction may be a “slow burner” to start with, they predicted that it would gather momentum as more employees became aware of their rights under the legislation.
In a piece they wrote for Lexology, they highlighted the key considerations for employers based on some of the bullying cases that have come before the commission and the courts.
The nature of bullying behaviour
Tobin, Vipond and Garnett wrote that although the Fair Work Act 2009 defines bullying as behaviour by a person in a workplace that is repeated, it does not necessarily have to be long-standing behaviour.
In a recent decision from the Queensland Supreme Court, an employee was awarded more than $300,000 in damages after returning from maternity leave and being bullied by her new manager for just 11 days.
The worker made a complaint to her business manager, but it was not taken seriously or investigated and she was told to, “put some lippy on and go home to your bub”.
Who can apply for a stop-bullying order?
The anti-bullying jurisdiction only applies to those employer by a “constitutionally covered business” which rules out the employees of some charities, businesses that are not incorporated and state government employees.
In one instance, an application was dismissed because the employee worked for a government-funded, not-for-profit provider of free services to vulnerable people, which was deemed not to be a constitutionally covered business.
Can past bullying behaviour be taken into account?
The commission’s full bench has emphasised that while anti-bullying orders are to “operate prospectively”, behaviour that took place before the anti-bullying measures were implemented can be taken into account because the legislation is “basing future action on past events”.
Can a stop-bullying order be issued to a worker after their employment has ended?
The lawyers wrote that it would be difficult to foresee a situation in which it would occur, but in one case, an application for an order was dismissed as the applicant had had their employment terminated.
His dismissal meant that the stop-bullying order would have had no reasonable chance of success, as one of the requirements for making an order is that that commission must be satisfied that there is a risk of the bullying behaviour at work continuing.
Key takeaways for employers from HopgoodGanim
- Deal with bullying complaints as soon as you are made aware of them – this is when you are put on notice that there is a reasonably foreseeable risk of psychiatric injury to the employee. If a breach of the duty to provide a safe working environment subsequently occurs and is proven, in addition to a possible complaint arising under the FWA’s bullying provisions, you may be liable for significant damages due to negligence.
- Bullying does not need to be long-term to significantly affect the health and wellbeing of employees.
- Having a policy on bullying and harassment is of no use unless it is followed. The way complaints are dealt with can be a significant stressor, and an inappropriate response to a complaint can heighten an employee’s sense of isolation and vulnerability and increase the probability of a psychiatric injury.
- Train your employees on your bullying and harassment policy and arrange for them to complete a test at the end which they must sign and date to ensure they acknowledge and understand the policy. Retain the test on the employee’s personnel file so that you can produce evidence of the training, if required.
- The jurisdictions that an employee can use to address a problem if they feel bullied are varied, and can include a workers’ compensation and/or negligence claim, a workplace health and safety complaint, a Fair Work stop bullying complaint or an adverse action complaint, and even a discrimination complaint in some circumstances. The complaint avenues and extent of liability, as well as the potential impact on valued employees, makes it essential that you have appropriate policies and procedures in place that treat bullying complaints seriously.
