Brisbane-based Ashurst partner and workplace law expert James Hall told HC Online employers should expect increased usage of the jurisdiction by employees over time, as it becomes more widely recognized and understood.
“It’s important to bear in mind that when the unfair dismissal regime was first introduced, you had a similar lukewarm take-up initially, and it took some time for the jurisdiction to establish itself,” Hall said.
Since being introduced on 1 January, the jurisdiction has not been utilised as widely as feared. The first half of the calendar year saw the Fair Work Commission receive close to 350 applications according to its annual report.
However if there is a ‘reasonable correlation’ between unfair dismissals and anti-bullying, Hall said it could take 2-3 years before it is more widely utilised. The Commission noted that each month of operation had seen slight increases in the number of applications received.
Regardless of the volume of cases to date, Hall said in some cases anti-bullying was already being seen as a ‘sword’ that employees could use to protect their employment status. In some more sophisticated industries - particularly those with unionized workforces - Hall said it was even possible that the jurisdiction is being used ‘strategically’.
“I have seen one claim, for example, where in my view the claim itself was purely designed to band aid a performance issue for the employee,” he said. “From that perspective, employers have some challenges in the management of these claims.”
Employers have been warned they should have robust performance management processes in place, to ensure management has the confidence to act and follow through on those processes when appraising employees.
Hall said this mitigates the risk of an employee saying they are being bullied at work if “they don’t like what they are being told” or even submitting a claim in anticipation of being “told something they don’t want to hear”.
HR departments should ensure they have appropriate bullying and harassment policies that are enforced, Hall said.
“I anticipate that over time a lot of these types of claims are going to come from disgruntled employees upset with performance appraisals, and middle management are sensitive to that; if they are labelled a bully it will reflect poorly on them.
"So it’s really about HR having the systems in place to give middle management the tools to evaluate employees and conduct appraisals effectively, so that management can have confidence in the process and that it will stand up to scrutiny if an allegation of bullying is made against a manager.”
Hall said employers should also expect developments in the reach of the jurisdiction, including decisions clarifying when bullying is considered to have happened at work or not at work, given the increasing use of social media.
More anti-bullying cases are expected against employers over time, with some employees already using the nascent jurisdiction as a ‘sword’ to protect their employment position.