What can we learn from new bullying decisions?

Workplace bullying has been under the microscope this year, and particularly so in the last month, with the Fair Work Commission handing down a number of decisions relating to stop-bullying applications or unfair dismissals.

It might seem, sometimes, that we have heard it all when it comes to bullying and how it can affect an organisation and its employees, but these decisions have raised some interesting points that you might not have considered relating to costs, workplace culture and "positive" anti-bullying initiatives.

One of the decisions found that an employee's 20-minute tirade of abuse towards a colleague constituted "repeated and unreasonable behaviour" within the meaning of bullying.

Would you have thought 20 minutes was enough to be considered "repeated"?

In that case, an employee was sacked after a colleague complained about the threats and abuse, which occurred at a hotel bar during their employer's national sales conference last year.

The employee claimed unfair dismissal, arguing his colleague had exaggerated the incident.

But the Commission found that while the employee's behaviour occurred over one evening, it was "repeated, humiliating, offensive and degrading" towards the colleague and contrary to the employer's bullying and harassment policy.

While we all know that bullying, according to the Fair Work Act, is when a person or group of people behaves "unreasonably and repeatedly" towards another person or group, should we rethink what might constitute "repeatedly"?

This decision seems to indicate that we should, as repeated behaviour doesn't have to occur over months, weeks or even days, but just minutes.

(You can read more in an OHS Alert article, which has been unlocked for non-subscribers, here.)

Anti-bullying initiatives are the way to go

Two lessons can be learnt from FWC findings in November relating to stop-bullying applications: comprehensive policies and training will reduce or eliminate bullying from the workplace, and discontinuing a bullying application doesn't mean it lacks reasonable cause.

In one case, the FWC declined to make orders against an employer that had introduced a number of "positive initiatives" to improve its culture after an employee complained she was subjected to verbal abuse, name calling and demeaning sarcasm by a colleague.

The employer's new comprehensive HR policy and anti-bullying training would "have the effect of reducing whatever risk was otherwise present" to the worker, the Commission found.

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

In another decision, however, the FWC ordered an employer - which had already attempted to improve its policies and training - to take further measures to tackle bullying.

Three employees claimed they were bullied by colleagues and union members through insulting Facebook posts and phone calls, and that there was a workplace culture that discouraged people from making complaints.

Interestingly, the Commission found the employer's steps - which included improving its anti-bullying policies and CCTV coverage, and introducing independent mediation and training programs on appropriate conduct - were unlikely to have eradicated the workplace's "Code of Silence".

It therefore required the employer, among other things, to train workers in forensic investigative techniques - such as obtaining and managing information and interviewing complainants and witnesses - and amend its workplace behaviour policy to make it clear bullying is a workplace safety issue.

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

In another case, three people accused of workplace bullying lost their bid for $51,000 in costs incurred defending the allegations, after the FWC found the alleged victims didn't act vexatiously in applying for stop-bullying orders.

The applicants discontinued their applications after the respondents ceased to come into contact with them at work.

The alleged bullies claimed that they were entitled to costs because the employees' applications had "no reasonable prospects of success" and the discontinuance of the applications demonstrated a "clear inference that the applications lacked reasonable cause".

But the FWC said it was "entirely appropriate" for the applicants to discontinue their stop-bullying applications and that it couldn't "be seriously advanced by the respondents" that they had no reasonable cause.

The evidence showed the applicants strongly believed their applications were genuine and "filed as a last resort to resolve what they perceived as bullying by the respondents", it said.

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

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