Why aren’t workers making bullying complaints?

by Nicola Middlemiss04 Nov 2015
Since the introduction of the new anti-bullying regime to the Fair Work Commission on January 1, 2014, only one out of 874 applications has been granted – but why is this the case? And why have so few applications been lodged?

HC spoke to two lawyers from firm McDonald Murholme, who shared the tactics they use when advising employees who claim to be victims of bullying.

According to Andrew Jewell, senior associate at McDonald Murholme, the commission had anticipated hundreds of complaints in the new regime’s first month, but there “just hasn’t been a large number of complaints”. 

Jewell speculated that there were a few reasons for the low number of complaints.

“First and foremost, there is no compensation to be claimed if bullying is found to be occurring,” he told HC. “The only order you can get is that the bullying behaviour ceases.

“Secondly, the definition of bullying is relatively narrow, which makes it hard to make a successful claim.”

The Fair Work Act defines bullying as repeated unreasonable conduct that has the potential to cause a health and safety risk.

Jewell added that another reason for the low number of claims being made is that practically, the claims aren’t dealt with very quickly.

“An employee could make an allegation, but the subsequent process could go on for three to six months,” he explained.

“It’s not often that people think they are being bullied, but having to put up with it for six months makes the situation worse.

“It’s also difficult to get a successful claim against a manager in circumstances involving performance management,” he added. “These tend to be the circumstances in which people think they are being bullied.”

Jewell said that if an alleged bully’s behaviour can be deemed ‘reasonable management’, the claim would collapse.

“There’s a secondary element that bullying can’t be a reasonable management action,” he explained. “Any conduct considered to demonstrate this is exempt from bullying orders.”

“Very few law firms are advising these orders as a primary option,” Jewell warned.

“There could be quite unreasonable conduct going on that is held to not be repeated, so deemed not to be bullying.”

According to Jewell, a more traditional route – which employees are still opting to take – would be a worker’s compensation claim.

“Employees cannot make a bullying claim if they already have a worker’s compensation claim in,” he said. “A lot of employees are sticking to compensation claims.”

“In circumstances where someone believes they are being bullied, we often advise them to take a different pathway to the new regime,” he continued.

“The primary option – if someone else’s behaviour is affecting their health – would be to make a worker’s compensation claim.”

“Another aspect that is likely to be affecting the decisions is that employees are given a choice: they can have legal representation, which would be costly considering no compensation is available; or they can just go one-on-one with their employer, which most people would find daunting.”

“Clearly the bullying jurisdiction is not cheap or an easy option for employees; any employee with a serious claim must take legal advice otherwise suffer a one in 874 chance of success,” Alan McDonald, the firm's managing director added.

“By taking legal advice they may find that the bullying is merely one of the options and not necessarily the best for them which is something employers need to be aware of as well.”


  • by Bernie Althofer 5/11/2015 1:55:09 PM

    There has been considerable discussion in a number of forums about this issue. Whilst it was initially thought that there would be a flood of complaints, the data seems to show otherwise. Now the focus is on why aren't more complaints being made.

    From what I have been able to glean from various discussion groups and from postings and from experience, there are a number of factors that come into play.

    These include:

    The process of reporting and resolving a complaint is time consuming and costly, and difficult for those who are not experienced in handling such matters.

    The parameters established through the Fair Work Commission in relation to workplace bullying means that a number of targets are precluded from using this avenue as a means of getting an outcome.

    The definition of workplace bullying does create considerable angst for individuals, and even moreso when the issue of reasonable management comes into play. There are significant differences between some international definitions, local definitions and workplace understandings about what is meant by bullying.

    Some targets do investigate alternative processes for achieving and outcome and this action result in a combination of of strategies involving various legislative options e.g. Trade Practices Act etc.

    In practical terms, the reasons discussed more often than not appear to be related to:

    workplace culture and the support offered to targets if they make a complaint
    punishment and reward systems linked to reporting of any forms of counterproductive workplace behaviours
    lack of leadership and management offered in relation to the prevention, detection, reporting and resolution of workplace bullying and other counterproductive behaviours
    fear of economic sanctions and job loss, and uncertainity of possible future employment if seen as a 'complainer'
    fear that bullying and other counterproductive behaviours are not seen as 'real issues' or put in the 'too hard' basket where targets find the process is dragged out to 'encourage' them to either withdraw their complaint or leave
    penalties imposed on alleged bullies not seen as a real deterrent and therefore not providing a reason for the incidents to be reported
    targets not having documentation to support their version finding themselves in situations whereby they will be further intimidated, threatened or harassed
    gaps between what a target perceives as bullying and what is reasonable management action
    differences in meaning and understanding being placed on requirements for 'repeated behaviour'
    wanting the behaviour to stop but not wanting the alleged bully to 'get into trouble or lose their job'
    target wanting someone to believe them, when the alleged bully is seen as the 'golden haired person'

    Reporting workplace bullying can apply additional pressure on a target who is already distressed because of the behaviours. It does appear that a well prepared target will seek legal advice from external sources particularly when they see that internal processes are not that effective in permanently stopping bullying behaviours. It might well be the case that some will pursue external sources and chances for higher compensation to send a message to their organisation that these are the consequences for not stopping bullying or treating a complaint seriously. Taking the matter externally make increase the potential for media interest, whereas internal processes are often shrouded in secrecy and confidentiality.

    Just because an organisation is not receiving data about workplace bullying incidents, it does not mean it is not happening.

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