Workers slow to take advantage of anti-bullying measures

by Janie Smith02 Jul 2014
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.
 
Related articles
Anti-bullying laws: A storm in a teacup?
Bullying update: What is “reasonable management action”?

COMMENTS

  • by Bernie Althofer 9/07/2014 7:47:30 AM

    Some individuals who have been targeted in the past may have been of the belief that they would be able to access this new process, only to find that because of the 'limitations' placed i.e. who is covered, that they had no access.

    It might also be the case that some have been waiting to see whether or not this new process works in favour of the target, the alleged bully or the organisation.

    In some situations, the target may be building a 'dossier' recording all incidents that will actually support the need to show a pattern of behaviour or conduct. This might be difficult when the behaviours used to target them vary and to the outsider or casual observer, the behaviours might appear as isolated or random incidents, when in fact, they form a pattern.

    It might also be the case that despite a well documented policy and procedure, and the provision of training, some targets may not feel safe in reporting incidents. As has been expressed in a number of forums, some individuals make the informed decision to take no action based on their personal physical, psychological and financial cost implications i.e. if they perceive that they may be subjected to further threats, intimidation, harassment, victimisation, loss of employment or job prospects, or reporting the matter will result in being viewed as a troublemaker.

    The lack of 'formal' reports of bullying does not necessarily mean that it is not occurring so organisations need to be constantly aware of the potential for bullying to occur, and that even minor negative conflict needs to a response. Minor negative conflict can escalate to bullying allegations.

    Those who have responsibility and accountability for dealing with or investigating negative workplace conflict need to be trained so that their actions do not contribute to the escalation or further litigation.

  • by Delia 9/07/2014 12:43:30 PM

    Very thought provoking Bernie. Another issue is that "bullying" can be quite subtle; or its meaning can be blurred. A friend of mine was bullied for a long time under the guise of "it's only a joke, doesn't she have a sense of humour?" so that she felt she was perhaps being over-sensitive. Nevertheless, she was always stressed, and her mental health did deteriorate. Her solution was to leave, not to take action. I expect that many others do the same.

  • by Deb 9/07/2014 12:49:03 PM

    I agree with Bernie - I suspect many people who could lodge a complaint are sitting back waiting to see how the new process works. It takes a lot of guts to lodge this sort of complaint.

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