Watch out: New cause of action against bullies and employers that permit bullying

On Tuesday the Federal Government released its response to the report that came out of the House of Representatives Standing Committee on Education and Employment’s inquiry into workplace bullying last year.

In their report the Committee made 23 recommendations ranging from initiatives such as the adoption of a standard definition of workplace bullying, the establishment of a workplace bullying advisory service, and the implementation of criminal laws in each State and Territory that are comparable to the Victorian “Brodie’s Law”.

The Government’s response indicates that it supports (or supports in principle) 19 of the Committee’s 23 recommendations.

Most significantly for businesses, the Government has supported the recommendation that arrangements be put in place to allow an individual right of recourse for victims of workplace bullying.

In its response the Government announced that it will amend the Fair Work Act 2009 (Cth) to include provisions that allow a worker affected by workplace bullying to apply to the Fair Work Commission to deal with the complaint.

Under the proposed new provisions the Commission will:

  • be required to deal with an application as a matter of priority by listing it for consideration within 14 days;
  • be able to refer the matter to work health and safety regulators for investigation (which, depending on the circumstances, may in turn lead to prosecution of the employer or other parties involved);
  • have the power to make orders it considers appropriate to remedy or prevent the bullying from recurring (which could include requiring employees involved in the bulling and/or the employer to do or not do certain things); and
  • have the power to impose a civil penalty of up to $33,000 on employers that fail to comply with an order of the Commission in relation to a bullying complaint.

The text of the proposed amendments is expected to be introduced to Parliament in March of this year with a view to the new provisions commencing from 1 July 2013.

At this stage many details of the proposed new regime are unclear. For example it is not clear:

  • whether applicants will be required to first raise their complaint with their employer before making an application to the      Commission;
  • whether it is only employees that will have access to this jurisdiction or whether it extends to “workers” in a broader sense;
  • whether complaints can be brought against individual perpetrators or only the employer; or 
  • whether the Commission will have the power to make orders for the payment of compensation.

What does this mean in practice?

It is currently very difficult for employees who are subjected to workplace bullying to access effective legal remedies to resolve the situation (unless the bullying constitutes a form of unlawful discrimination or sexual harassment, or the employee has suffered a significant personal injury as a result of the conduct).

Should the proposed amendments come to pass, for the first time in Australian history employees will have ready access to a remedy specifically targeted at workplace bullying.

This will have a significant impact on businesses, as they are highly likely to find themselves in front of the Commission in circumstances where they have not taken complaints of workplace bullying seriously or have not conducted proper investigations.

In addition, the Commission’s power to refer matters to the relevant state WHS regulator means that in more serious bullying cases there is a much higher risk of the regulator taking enforcement action against the employer (and perhaps even the perpetrator of the conduct).

What should businesses do?

Businesses already have an obligation to ensure that workers are not subjected to bullying or harassment in the workplace. These obligations arise under workplace health and safety legislation and general duty of care requirements.

As such, irrespective of whether or not the proposed amendments come to pass, all businesses should ensure that they have well documented policies regarding bullying and harassment, that staff are adequately trained in these policies and that there is a robust complaints handling process.

Greater scrutiny of practices in relation to bullying and harassment will arise in the event that the proposed amendments to the Fair Work Act come to pass. Should this occur, all businesses would be well advised to:

  • review and update:
         - bullying and harassment policies to ensure that they are comprehensive and take into account the legislative amendments; and
         - complaints and grievance handling processes to ensure that they are robust and can withstand legal challenge; and
  • conduct refresher training for: 
         - all staff on bullying and harassment and what  to do if they experience bullying or harassment in the workplace; and
         - managers and supervisors on how to investigate and resolve complaints of bullying or harassment.

Kristin Ramsey is an experienced industrial relations lawyer and is currently the Head of Workplace Relations, Health and Safety at Hynes Lawyers.

Views: 1850

Comment by Bernard Keith Althofer on February 15, 2013 at 8:06

Whilst the provision of a 'standardised' definition of workplace bullying may assist organisations and individuals, there are a number of definitions that have been developed over a period of time.  Individuals may also rely on personal understanding that has been developed through their own research, presentations conducted at workplaces or even a belief that bullying and harassment are the same.

When the legislation is finally passed, there will be a need to conduct interactive training so that officers and workers at all levels can test their knowledge and clarify understanding about what is really mean by the new legislation.

Whilst there will be some who believe that bullying is a work health and safety issue, some allegations and incidents also involve industrial and HR issues such as employment contracts.

As has been discussed in a number of other forums, there will be a need for organisations to address the hazard or risk factors that may contribute to workplace bullying.  Simply reviewing existing policies and procedures to ensure that they meet current requirements established through the new legislation may be insufficient.  Related systems and processes also need to be reviewed and improved where necessary.

Organisations may decide to review their workplace bullying policies and procedures without first conducting an audit to determine the extent of bullying, and gaps that exist between current practices and new requirements.  It might well be the case that a review will identify what is a work health and safety issue and what is an industrial issue.  

It also seems from some recent discussions that some managers 'leave' it to the organisation to sort out allegations.  It seems that managers need specific training on how they can respond to an allegation, particularly when that allegation may involve discussions about performance management, workplace standards, discipline etc with a target.  It appears that some managers may not understand the importance or even the relevance of well maintained notes (evidence).

It also seems to me that organisations need to be more proactive in encouraging individuals to come forward and report workplace bullying.  It seems from some discussions over the past few years, that some organisations are not aware of the extent of workplace bullying because individuals do not trust internal systems or processes, and seek advice from external providers.  Some organisations do have well documented Codes of Practices, and even 'whistleblower' policies and procedures, but the reality is that the workplace culture is some organisations is such that those who report bullying become bigger targets.

It might be important to ensure that there are a range of options available for targets so that they can make an informed decision about the action they can take.  In some cases, the target may decide not to pursue an outcome.  Organisations need to aware of these decisions.  It seems that in some cases, the lack of data about unreported incidents can lead officers to believe that bullying is not an issue in the workplace.

As has been said in a number of other forums, workplace bullying is a complex issue requiring complex solutions.  Simply updating policies and procedures and providing refresher training might not change anything.

Comment by Kristin Ramsey on February 15, 2013 at 9:15

Hi Bernie

I don't disagree with any of your comments and understand that this is an area that you have a particular speciality in.

I guess I was simply making some practical suggestions about what organsations should do at least in the initial stages of the new legislation.

I think the training/education element is extremely important both in respect of what bullying is/isn’t but also in how to investigate and respond to complaints of bullying. Some of the Committee’s other recommendations go to the issue of training/education through Safe Work Australia and also a new advisory service. These will obviously be important initiatives if we are going to see any real change in this area.

Thanks for your comments.

Kristin

Comment by Bernard Keith Althofer on February 15, 2013 at 10:59

Kristin

You made some great points and I concur with your suggestions.

I think that one of the issues we are all going to be dealing with is how organisations perceive the legislation and whether or not they sit on their hands waiting for the first incident to occur before they do something.

I think by now organisations should have least started by reading the draft Code of Practice and perhaps even some of the commentaries being made to get an idea about how they can be proactive and preventive.  Changes have been on the radar for some time and I would think that the proactive organisations have already set the wheels in motion.

The importance of training/education should not be underestimated and depending how it is conducted, it may help to mitigate claims.  

Currency of knowledge seems to be a critical aspect and relying on what was required more than 12 months ago, might not be viewed as good practice.

I think there is going to be some spirited debate when the time for implementation draws closer, so it will be interesting to see how organisations respond.

It is great to see you taking a lead in starting the discussion.

Bernie

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