Two developments at the end of 2013 have put workplace bullying fairly and squarely on the agenda for 2014.
Firstly, as of 1 January 2014, it is now possible for a worker to make a complaint to the Fair Work Commission specifically about bullying in the workplace. The legislation specifically prevents the employee from making a claim for compensation: the purpose of the claim, which will usually be against the alleged bully as well as the employer, is to seek a “stop bullying” order.
Secondly, in November 2013, Safe Work Australia issued a guidance paper regarding prevention of workplace bullying. This will be the background for future bullying issues in the work, health and safety system.
For both purposes, the definition of bullying (which has, in the past, been a notoriously vague concept when used in a legal context) is the same: repeated unreasonable behaviour directed at a worker or group of workers. “Worker” and “workplace” have the same broad scope which is familiar from WHS legislation. The bully could be a fellow worker, a manager, a customer or other visitor to the workplace.
Reasonable management action carried out in a reasonable manner is not bullying. So for feedback, performance management or other disciplinary processes, the focus will be on whether the action was reasonable in itself, and conducted reasonably as well.
Of course, it also makes good business sense and is good HR practice to manage any workplace situation which might amount to bullying. But these new developments mean closer scrutiny of employers and workplace culture. Employers, like good scouts, need to “Be Prepared”. What does that entail?
- You need to revisit policies and procedures around issues such as discrimination, harassment, codes of conduct and work health and safety, to ensure that bullying is specifically forbidden at the workplace.
- You need to ensure that you have an appropriate grievance procedure to deal with bullying as well other forms of impermissible conduct at the workplace.
- You need to ensure that staff, and supervisory and management staff in particular, are trained to be aware of, and to respond to, bullying in the workplace.