Developments in the anti-bullying jurisdiction

Although workplace bullying is not a new problem, the legal landscape underwent a significant shift with the commencement of the Fair Work Commission’s anti-bullying jurisdiction. Even now, the implications of this change continue to unfold, as employers, workers, lawyers and the FWC itself continue to grapple with the true reach and utility of these important provisions.

Bullying basics

In a nutshell:

  • The anti-bullying provisions didn’t create additional legal obligations: separate workplace health and safety laws already required employers to protect the mental wellbeing of employees and an employer’s basic duty of care always extended to encompass a duty to prevent bullying.
  • The changes were significant, however, because they expanded the remedies which a worker may pursue when bullying is alleged. An applicant can now seek orders to prevent workplace bullying, and access is not limited by reference to income, Award/EA coverage or even employment status (meaning that contractors, executives and directors alike can apply for relief).

The FWC’s sole statutory objective in these cases is to prevent future bullying. It is not empowered to punish or compensate, but it can exercise influence over the management of ongoing working relationships by making any order, other than one which requires “payment of a pecuniary amount”.

Trends

There has been a modest, but steady increase in the number of stop-bullying applications made since the FWC jurisdiction was introduced in 2014, but what is more significant is the apparent willingness on the part of the FWC to make more novel orders.

Interim orders

In a recent decision – Bayly [2017] FWC 1886 – Commissioner Hampton issued an interim order which prevented an employer from taking any further disciplinary action against an executive for alleged misconduct until her stop-bullying application could be finally determined. The Commissioner was swayed by the fact that the employer could effectively nullify the application by terminating the employee (because the FWC can only make orders if there is a risk of further bullying in the workplace).

We have some doubts about the reasoning for the interim order made in this case, but as things stand, this precedent may encourage workers to use the anti-bullying jurisdiction as a ‘shield’, or at least a stalling tactic, when they are faced with the potential consequences of alleged misconduct or inadequate performance. The risk is most acute when termination is a likely outcome. We have already represented an employer at a hearing where the applicant sought urgent interim orders relying on this decision.

Other varied orders

In Worker A and others [2016] FWC 6524, Deputy President Gostencnik issued a sweeping final order which prohibited a broad range of conduct (including the use of particular colourful insults) both in person and on social media. This case arose out of the Carlton United Breweries dispute, after multiple unions set up an aggressive picket line to harass new employees, who had replaced redundant union members at Abbotsford. The restrictions applied to any person acting as a member, delegate or official of specified unions and the protections extended to every worker at the workplace, most of whom weren’t involved in the application.

In other cases, the Commission has taken a minimalistic approach. For example, in Darren Lacey and Chris Kandelaars [2017] FWC 3136, Commissioner Roe determined that remedial action taken by an employer (removing an employee from a supervisory role) had substantially addressed the complaints in the application. He did not make any order, but still opted to explicitly confirm in his decision that bullying had occurred. This was apparently intended to discourage any repetition of the conduct and lay the groundwork if the situation deteriorated and a further application became necessary.

The challenges for employers

The perception of bullying is notoriously subjective: a hypersensitive employee and an overzealous manager are equally liable to misunderstand the limits of reasonable management action, for example. Further complications arise in the case of more subtle forms of bullying such as exclusion and ‘politicking’ among co-workers.

These cases also demonstrate that there is uncertainty surrounding the approach the FWC will take in intervening in situations where bullying allegations are made.

Even if bullying isn’t established in the Commission, the costs and other resources expended defending an application usually can’t be recovered, and the process can be emotionally draining and upsetting given then sensitive subject matter.

What can you do?

  • Ensure that you have in place and make available policies and procedures which define unacceptable bullying conduct, and explain the ways in which complaints will be addressed. The FWC is obliged to consider whether an employee has exhausted workplace-level grievance mechanisms when deciding whether to make orders.
  • Seriously consider workplace training on bullying, what it is (and more importantly what it is NOT) and how it should be dealt with. In the most recent quarter for which statistics were published, the vast majority of bullying applications were made by workers alleging bullying by a manager or a group of managers. This is where specialised training can be most useful: to support managers and assist them to ‘reasonably’ manage employees without going further than is necessary or lawful. We regularly provide training which addresses these issues.
  • Be proactive in managing bullying. The best way to protect yourself from orders is to take appropriate action yourself. If the risk of further bullying has been adequately addressed in the workplace, the FWC will have little or no work to do and intervention is far less likely.

If you have any queries or would like further information regarding this article, please contact:

Barney Adams
Lawyer
T: (03) 6235 5917
E: badams@pageseager.com.au

Luke Gattuso
Partner
M: 0411 989 292
E: lgattuso@pageseager.com.au

David Dilger
Partner
M: 0428 238 819
E: ddilger@pageseager.com.au

Published: 17 August 2017

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