Adverse action time limits restricted as workplace bullying rises

by External11 Mar 2013

A change in time frames means that while the limitation periods have decreased, the importance of having in place strategies to eliminate or minimise the risk of workplace bullying has never been more important. Nick Read outlines what it means for businesses.

Amendments to the Fair Work Act, just before the holiday break, included a major change that decreased the time limit for bringing general protections claims from 60 days to 21 days. These protections provide a broad cover for employees, including those who have made complaints in relation to their employment and been treated adversely by their employers. 

The change to the limitation period comes at a time when increases in bullying and harassment in the workplace and complaints made in respect of these issues are on the rise. This news comes from a report, also released by Safe Work Australia in December, last year, titled ‘The Australian Workplace Barometer: Report on psychosocial safety climate and worker health in Australia’. The report revealed that levels of bullying in Australian workplaces is substantially higher than international rates.

All of which points to the fact that, while the limitation periods have decreased, the importance of having in place strategies to eliminate or minimise the risk of workplace bullying has never been more important. Failing to implement and follow proper procedures in relation to workplace bullying can expose businesses to both criminal and civil liability.

In light of what have been significant increases in legal action relating to bullying, Safe Work Australia has published a Model Code on Preventing and Responding to Bullying in the Workplace. Although the Code has not been adopted by all states and territories, its national approach emphasises the importance of assessing, managing and implementing strategies to minimise the risk of workplace bullying, which the Model Code defines as ‘repeated, unreasonable behaviour directed towards a worker, or group of workers, that creates a risk to health and safety.’

‘Repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time, while ‘unreasonable behaviour’ means behaviour that a reasonable person, having regard for the circumstances would see as victimising, humiliating, undermining or threatening. The definition of bullying is also extended to refer to indirect, direct, intentional and unintentional bullying.

The general protections provisions of the Fair Work Act prohibit employers from taking ‘adverse action’ against employees because of the exercise a workplace right, which includes a making a complaint, or inquiry, in relation to their employment. It is important to note that, any verbal or written complaint (including one made under a formal grievance procedure) may be the exercise a workplace right. This includes complaints on any subject relating to the employee’s employment irrespective of its perceived validity or seriousness.

‘Adverse action’ includes dismissing an employee, injuring an employee – in the course of his, or her, employment – altering the position of an employee to his, or her, prejudice or discriminating against an employee. The type of adverse action that may be taken is broad and may include placing an employee at a disadvantage to other employees in situations that, for example, exclude them from participating in particular workplace opportunities. Adverse action may also be a failure to act; an employee may be disadvantaged by the failure by an employer to take action to investigate a complaint.

Remedies for general protections claims are broad and include injunction, reinstatement and uncapped compensation. But, unlike unfair dismissal claims, which require an employee to have served a minimum employment period and be earning less than the high income threshold, there are no minimum requirements to bringing a general protections claim. 

In fact, the general protections provisions are not restricted to the person being an employee, and the provisions also apply to prospective employees and independent contractors. The broad rights and lack of requirements to bring a claim have resulted in a steady increase in the number of claims. The Fair Work Commission has reported that it received approximately 2000 claims under the general protection provisions in 2012.

Against this background of the reduced timeframe there are the troubling statistics concerning in bullying in Australian workplaces. Employers need to take a proactive approach to developing and encouraging a bully-free workplace culture. Failing to acknowledge complaints about bullying or failing to investigate complaints will expose employers to considerable risk.  While employees, who have made complaints about being bullied and are treated adversely by their employer, have rights under the general protections provisions, liability may also stem from workers compensation claims, complaints under state and federal anti-discrimination laws, and prosecutions under the work health and safety laws.

In these circumstances, developing and implementing an anti-bullying strategy is the best option. This should involve developing awareness of the issue in the workplace, consultation with workers, and developing and implementing policies and proper processes for dealing with complaints. Policy may be based on Safe Work Australia’s draft Model Code on the preventing and responding to workplace bullying. In situations that present a risk of liability, it is safest to seek legal advice where a claim of privilege over an investigation can be made on the investigation and associated documents.

About the author

Nick Read is a Senior Associate at Holman Webb Lawyers