Over the last few years workplace bullying has received a lot of focus from our politicians and the media. This resulted in changes being made to the Fair Work Act last year (2013), with changes specifically made to bullying in the workplace. These changes came into effect from the start of this year (2014).
What are the changes?
If a worker considers that he or she has been bullied at work and there is a risk that he or she will continue to be bullied, the worker can now apply to the Workers Compensation Commission (WCC) for an order to stop the bullying.
After the worker’s application has been lodged, the WCC will send a copy of the application to the employer and the person(s) who is alleged to be the bully.
The employer and the alleged bully will then have seven days in which to lodge responses to the application.
Once the WCC has received the responses, it will decide how best to deal with the complaint. The WCC has three options:
Appoint a mediator to conduct a mediation between the parties;
Convene a formal conference before a WCC Commissioner; or
Refer the complaint to a formal hearing.
As part of a formal conference or hearing, the WCC may make “orders”. The orders the WCC may make must be aimed at preventing further bullying and it is expected that they could include orders such as requiring the person(s) to cease bullying behaviour, requiring employers to regularly monitor the behaviour of certain the person(s) and to comply with it’s own bullying policy.
The WCC is not empowered to issue fines and penalties or to award financial compensation as a consequence of this type of application.
Does it apply to you?
Relevantly, it applies to all private companies but does not apply to sole traders or partnerships of individuals.
Is there anything you can do to prepare for this change?
It makes good business sense generally to have in place good risk minimisation/management procedures. To that end, at the very least put in place a bullying policy which provides a mechanism for complaints to be made and investigated within your business.
Understand what bullying is and is not. Bullying is when a person or persons repeatedly behaves unreasonably towards another person or persons and generally involves aggressive, intimidating, belittling or humiliating behaviour.
Bullying is not reasonable action taken as part of performance management.
Don’t tolerate bullying and don’t be conned into believing that reasonable action taken as part of performance management, is bullying.
The more serious the allegation the greater consideration you should give to engaging outside assistance with undertaking and advising on the outcome of any necessary investigations. This is particularly so given that if there is bullying and it results in a serious psychological injury, you could find yourself subject to a prosecution by WorkCover under the work, health and safety legislation. If that occurs you want to be able to prove to the Judge that you took the allegations seriously and engaging properly qualified outside experts to investigate and advise you on the allegations is one way of doing that.
If you have any questions about the changes to workplace bullying laws, please don’t hesitate to contact our Employment Law Team.