Employment & Industrial Relations Partner at ClarkeKann Lawyers, Belinda Hapgood, says there is a new avenue for victims of workplace bullying and one that may have unintended consequences for employers who fail to take steps to eradicate cultures that encourage workplace bullying.
WHAT IS BULLYING AT WORK?
Bullying occurs when:
- a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; and
- the behaviour creates a risk to health and safety. Importantly, there is an exemption for behaviour that constitutes reasonable management action carried out in a reasonable manner
WHAT IS THE PROCESS?
From 1 January 2014, workers who consider that they have been the victims of workplace bullying will be able to make an application to the Fair Work Commission. The Fair Work Commission will investigate the matter, contact the employer for information and may direct the parties to attend a conciliation conference.
The people that may be served with an application by the affected worker could include the employer, the alleged bully and any third party involved.
An employer should make sure that they include details in their response to the Fair Work Commission of any internal process or procedure available to the applicant in relation to a workplace bullying complaint.
Additionally, an employer may have a defence of reasonable management action or may be able to argue that the worker concerned is not covered by the Workplace Bullying laws. Specific legal advice about these issues should be sought prior to completing the response forms.
If the Fair Work Commission considers the matter is appropriate, the parties may be invited to attend mediation to help resolve the matter in an informal, confidential and voluntary way. Importantly, the Commission has indicated that it will not be promoting monetary settlement of the applications.
HEARINGS AND ENFORCEMENT
If the matter is either not resolved at mediation or is deemed not appropriate for mediation, a formal hearing may be held at which evidence will be led by both parties and the Commission will make ultimate determinations as to whether or not bullying has occurred and whether or not it is appropriate to make an
order that the bullying cease.
The orders that can be made might include:
- requiring the individual or group of individuals to stop the specified behaviour;
- regular monitoring of behaviours by an employer or principal;
- compliance with an employer’s or principal’s bullying policy;
- the provision of information, additional support and training to workers; and
- review of the employer’s or principal’s bullying policy.
A failure to comply with an order made the Commission may result in a disgruntled party seeking to enforce the order in the Court.
WHAT TO DO NOW?
Employers should proactively review their existing workplace bullying and harassment policies and procedures to ensure that they are up to date with the requirements of the new legislation.