‘Natural limitations’ will ensure floodgates remain closed

by Ben Abbott05 Jan 2015
‘Natural limitations’ in the structure of the anti-bullying jurisdiction will ensure companies are not inundated with new legal headaches.
Recently, HC Online reported that HR managers should expect an uptick in anti-bullying cases over time, as the jurisdiction becomes more widely understood and utilized over the next few years.
Brisbane-based Ashurst partner James Hall said, in a similar way to the introduction of unfair dismissal legislation, it could take 2-3 years for the true volume of anti-bullying cases to begin to be felt by managers.
However, People + Culture Strategies workplace law expert Kathryn Dent told HC Online that ‘natural limitations’ ensured the floodgates were not about to open in 2015 when it comes to new applications.
“We are still watching the anti-bullying decisions coming down and there are certainly areas of the legislation that haven’t been examined in depth by the courts,” Dent told HC Online.
She notes the question of when a worker is considered to be at work, as well as the evolving interpretation of ‘reasonable management action’.
“A lot [of applications] are leveled at managers, and companies need to be aware of the type of conduct that managers can safely engage in.”
However, while Dent does expect there to be an increase in applications as people become more familiar with the jurisdiction, ‘natural limitations’ would stem the extent new case flow.
“The courts can’t order compensation under that type of action; if an employee is seeking compensation for illness or injury, for example, then an anti-bullying order is not the forum for that,” Dent said.
She said those who are looking for bullying to stop would use the jurisdiction, but may take some time to become comfortable with it.
“The other natural limitation is that employees need to first comply with grievance procedures within their organisation,” Dent explained.
“If an investigation finds there is no case to answer, that is a natural filter for applications that may have gone to the Fair Work Commission. Internal processes may end up resolving the issue,” she said.
Looking forward towards 2015, Dent said a huge inundation was not expected. “You are not going to see the floodgates open I don’t think.”
But Dent said in her experience there is “a lot of bullying complaints out there” that are kept internal, and HR managers need to make sure they had the proper policies and procedures in place to handle complains.
The anti-bullying jurisdiction came into force 1 January, but has not been utilized as widely as feared. The first half of the calendar year saw the FWC receive 350 applications according to its annual report.


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