Despite what some might call ‘hysteria’ that prevailed at the time of the introduction of the anti-bullying laws and the expectation of the Fair Work Commission (the Commission) that it may receive some 3,500 bullying related applications per month, the reality is that far fewer complaints of bullying have been received by the Commission. Employees are resorting to other avenues of redress such as workers compensation and adverse action. These other avenues are likely to be more attractive as a potential financial remedy is available.
According its report in March, the Commission received 151 applications for orders to stop bullying in the first three months of operation, with the majority from employees of large organisations alleging unreasonable behaviour by their managers.
The workers came from a broad range of sectors, with the highest number (23) in the clerical industry, followed by retail (13).
Below is a summary from recent decisions to assist employers as to how the Commission has handled complaints thus far:
- The employment relationship has to be on foot for a bullying application to be considered and orders made, if the employment has already ended then it follows that there is no risk of bullying. However this does not preclude other applications being brought by the employee1.
- Orders issued will be specific as to future conduct between a victim and the perpetrator2.
- Orders of the Commission have no expiry.
- Past acts of bullying pre 1 January 2014 can be alleged and can be relevant.
- No specific number of incidents constitutes “repeated behaviour” however it must constitute a risk to health and safety3.
- Management action does not have to be perfect, it has to be reasonable. Management action includes "everyday actions to effectively direct and control the way work is carried out" and is not limited to disciplinary or performance management alone4.
- Whilst not ideal, expressions of upset and anger will not necessarily constitute bullying behaviour depending on the context. It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger5.
- Workplace change is often difficult for employees and support should be available to employees who may have difficulty adjusting. Much of an employee’s identity and self-worth can be linked to their employment. Change to reporting responsibilities can be very emotionally challenging for some individuals. Senior managers have to support employees who have difficulty adjusting and accept the need for reasonable periods for adjustment.
- Maintaining privilege over investigation reports may be appropriate to protect employees and in the interests of maintaining ongoing employment relationships between parties. It was argued by an employer that it should be enough to advise the Commission that an investigation had been carried out and what its findings were, and the Commissioner ultimately appeared to accept this in the interests of there being ongoing employment relationships.
- Investigations must be conducted rigorously, impartially and independently and an employer will need to potentially satisfy the Commission of this. Matters the Commission is likely to take into account, are the investigator’s terms of reference and how they had been determined, and the quality and reliability of the investigator's report.
- Obtaining costs against unsuccessful applicants is likely to be difficult. This is because the Commission is required to identify who is conducting the workplace concerned, the nature of the workplace concerned and the parties involved which can be complex and not always immediately clear for a person bringing a bullying complaint6.