In early 2013, the Government announced a proposal to create another avenue of complaint to the Fair Work Commission for employees who are bullied at work. Joydeep Hor and Cara Seymour ask whether this is the right approach to eliminating bullying.
With the increase in bullying claims and prosecutions many employers have responded positively and proactively with initiatives aimed at changing workplace behaviour. However, easy access to individual complaint-based mechanisms has also had some negative and unintended consequences for employers. Do we need another remedy or should we be focusing on broader preventative measures to eliminate bullying?
On 12 February 2013, Employment and Workplace Relations Minister Bill Shorten announced the Government’s proposal to create another avenue of complaint to the Fair Work Commission (“FWC”) for employees who are bullied at work. The proposal is in response to a recommendation from the Standing Committee on Education and Employment of the House of Representatives in its report “Workplace Bullying: We Just Want it to Stop” released in October last year, that the Government allow bullied employees to seek individual recourse through an adjudicative process.
The proposal has drawn a mixed, in some cases lukewarm, response from workplace relations experts not because the concern to eliminate bullying in the workplace has waned, but because there is a question mark around whether another legal remedy to address bullying is necessary, or likely to be effective in the form proposed.
Recommendation 1 of the report adopts a popular definition of “bullying” as “repeated, unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”. It is the creation of this risk that has kept the focus on remedying workplace bullying within the work, health and safety and worker’s compensation jurisdictions over the past decade, with regulators developing significant expertise in this area. There has also been significant growth in the number of bullying claims under discrimination legislation, where it must be shown that the bullying behaviour was based on a protected ground of discrimination.
More recently, the adverse action provisions of the Fair Work Act 2009 have proved to be fertile ground for complaints of bullying in response to performance management that may or may not lead to termination or resignation. Where termination or resignation results, unfair dismissal also remains as a popular avenue of redress.
It is in the context of performance supervision and management, disciplinary action and allocations of work that the line between bullying behaviours and genuine performance management or reasonable administrative actions becomes blurred by subjective perceptions.
Unfortunately, the legal causes of action available for workplace bullying are so broad that fabricated complaints of bullying by employees have become a not uncommon tactic for impeding performance management, delaying or preventing termination of employment and claiming reinstatement or compensation.
The Government’s proposal is to have applications from employees to the FWC alleging workplace bullying fast-tracked for consideration within 14 days. If the FWC is satisfied that a person has been subjected to workplace bullying it could make orders it considers appropriate to remedy or prevent the conduct recurring, including directing an employer’s action in a particular manner so as to resolve the particular complaint and to prevent further bullying. The FWC may also recommend that a matter be investigated by a Work Health Safety regulator under Work Health Safety legislation. Penalties of up to $33,000 for corporations may apply.
While the intent to make these provisions preventative rather than just remedial is positive in theory, the concern is that this broad, fast avenue of complaint may lead to an increase in unmeritorious claims of bullying in order to bring more systemic workplace disputes before the FWC at short notice. It would be unfortunate if the resources of the FWC were invested in a misuse of the proposed provisions to the detriment of genuine claims.
Another question to consider is whether the FWC is the most appropriate forum to deal with bullying given its relatively recent exposure to the work, health and safety aspects of bullying, when compared with the expertise of work, health and safety regulators and anti-discrimination tribunals.
When it comes to workplace bullying, changing workplace culture is key. Individual complaint-based mechanisms are never enough to engender cultural change.
Training and awareness raising programs, mentoring and positive leadership also need to be considered. Perhaps it is time to focus more on the preventative measures proposed by the Standing Committee rather than an additional avenue for individual complaint.
About the authors
Joydeep Hor is managing principal at People + Culture Strategies, P: 8094 3101 E: email@example.com
Cara Seymour is a senior associate at People + Culture Strategies, P: 8094 3104 E: firstname.lastname@example.org