Workplace bullying: a new right for an age-old problem

A shift in the management of workplace bullying complaints will take effect soon, and employers need to prepare now, writes Gordon Williams

From January 1, 2014, workers will have an important new right to seek orders from the Fair Work Commission (FWC) to stop workplace bullying. While many welcome the development, this shift in the regulation of workplace bullying has also given rise to a range of concerns – including that the FWC complaint process could lead to employees sidestepping their employer’s internal anti-bullying procedures or using the process “tactically” if they are under performance management or seeking to negotiate an exit from the business.

Whatever your view, this is a very significant development and will pose challenges. Employers need to be ready. Summarised here are the key provisions of the new right together with some practical suggestions for how businesses can prepare for the challenges.

Who can complain?
Complaints can be made by a “worker” – worker is defined broadly (the definition is taken from the work health and safety legislation) and includes employees, contractors, sub-contractors, labour hire employees, volunteers or students. A worker can lodge a complaint if they “reasonably believe” they have been subjected to bullying.

What powers will the FWC have?
The FWC will have broad powers to deal with workplace bullying complaints, including:

  • to investigate a complaint: it may do this by seeking information (documents or statements), conducting conciliations (which may result in it issuing recommendations or opinions) or conducting a hearing
  • to make orders: such as requiring a person (including but not limited to an employer) to do, or not do, certain things to resolve the bullying complaint or prevent further bullying
  • referring a matter to the relevant work health and safety regulator.

The FWC has to act promptly and must start dealing with a complaint within 14 days. Before making any orders, it must take into account any relevant procedures or outcomes.

What are the penalties?
Importantly, the FWC cannot order a person to pay compensation. The focus of their powers is the prevention of bullying. However, if the FWC makes an order to stop bullying and it is not complied with, fines can be imposed: up to $51,000 for a corporation or $10,200 for an individual.

“A significant proportion of workplace bullying complaints arise out of performance management”

Practical tips to meet the challenges
We all know that workplace bullying complaints are difficult to manage – they take time and often raise complicated factual matters. This new bullying complaint process is unlikely to simplify things, although a clear definition of what bullying is (and guidance about what it is not) is welcomed. While employers have six months’ breathing space, they do need to start preparing.

In particular, they need to update bullying policies and grievance procedures. If the FWC receives a complaint, it will almost certainly ask for these documents – and they should be up to date. This is particularly important because Safe Work Australia has just released a further draft Bullying Code of Practice. We expect the FWC to have some regard to that code, so your policies and procedures should take account of it (and you should be familiar with it). Employers should also conduct anti-bullying training for employees and managers.

Training is essential to mitigate the risk of workplace bullying occurring at all or, if it does occur, to equip employees and managers with the tools for dealing with it. It’s also likely to be one of the first questions the FWC asks – so you want to be able to respond positively. A record of who attends the training is also important, including following up with those who miss out. Training is also useful to set employees’ expectations about what bullying really is (or is not), particularly in the context of reasonable management action and performance management.

It is also important to consider performance management training for managers. A significant proportion of workplace bullying complaints arise out of performance management. This justifies appropriate training for managers on this issue. Employers should also look at how investigations are conducted, including whether the HR or legal team needs further training. Dealing with bullying allegations promptly and efficiently is essential. Not only will this reduce the risk of external complaints, but the FWC must consider any process or outcome before making orders. However, conducting investigations is not easy, and a poor investigation can lead to its own problems. Therefore, it is worth considering whether your HR or legal team would benefit from further training.

There’s no doubt the new workplace bullying complaint process will present some significant challenges for employers. However, by adopting a proactive approach to the issue and taking some practical steps, your organisation should be well placed to deal with them.