Prepare, prepare, prepare. It’s all in the preparation..
Workplace conduct policies, complaint and investigation procedures and employee training programs should be at the top of your agenda this financial year as bullying becomes the big risk item on the radar of authorities and employers alike.
Employers should already be aware that from 1 January 2014, any worker who has been bullied at work may apply to the Fair Work Commission (FWC), which may in turn make any order it considers appropriate (other than ordering that money be paid to the worker) to prevent the worker being bullied at work.
The potential risks and issues for employers, however, are much greater than the operational costs associated with complying with a stop bullying order. Importantly:
- “Bullied at work” is defined as repeated unreasonable behaviour towards a worker which creates a risk to health and safety. It follows that a stop bullying order may be a catalyst for an investigation into alleged breaches of work health and safety legislation.
- Civil claims are already on the rise and a “win” in the FWC may encourage more bullied workers to bring claims for psychological injuries or illnesses.
Work Health and Safety
Under the model laws, employers and other primary duty holders must, among other things:
- Provide and maintain a work environment without risks to health and safety.
- Provide necessary information, training, instruction or supervision to protect persons from risks to their health and safety.
- Monitor the health of workers and the conditions of the workplace to prevent illness or injury.
Each of these obligations may be broken where a worker is bullied at work.
To date, no employers have been prosecuted for bullying-related offences under the new regime. This is most likely because bullying-related incidents are not “notifiable incidents” under work health and safety legislation and as such, the relevant authorities do not have sufficient information upon which to act.
A FWC order will likely serve to bridge this knowledge gap, potentially leading to an increase in investigations, the issuing of improvement notices and, possibly, prosecutions. A FWC order or the potential for an order may also encourage health and safety representatives to issue provisional improvement notices to demonstrate that they are discharging their duties.
As a result, employers may be exposed to the operational costs of complying with notices and assisting authorities in their investigations or criminal penalties or other orders (including injunctions and training orders) if prosecuted.
Officers may also be targeted individually if they are ignorant or do not adequately respond to bullying complaints and may be personally exposed for failing to exercise due diligence.
Damages claims associated with workplace bullying are also on the rise, both in number and quantification of damages.
Recently, the Victorian Supreme Court awarded an employee almost $600,000 for a psychiatric injury sustained as a result of workplace bullying. In finding the employer had breached its duty of care, the Court took into account, among other things, that:
- The employer’s relations with and between its employees and its expectations of employee conduct were not properly defined in job descriptions, employment contracts and workplace behaviour policies.
- The board identified that the above was resulting in conflict between the alleged bully and the employee and needed to be rectified and not only failed to rectify the omissions but misrepresented to the employee that the rectifications were imminent.
- There was a lack of policy, process and training, including in relation to reporting and dealing with inappropriate behaviour, enabling employees to seek assistance when bullying occurred and complaints handling.
- The board did not conduct a formal or informal investigation and did not issue any formal or informal warning to the alleged bully about his conduct.
- The board did not conduct a risk assessment, monitor the situation or take steps to control the risk of injury to the employee.
The FWC must start to deal with a workplace bullying application within 14 days of the application being made. This gives an employer almost no time in which to investigate the allegations and to prepare its case.
Employers must be careful not to make knee-jerk reactions to FWC applications or notifications of an intent to make such, as adverse action and unfair dismissal applications may follow from the alleged victim, the alleged bully and other parties involved.
Equally, employers should not be paralysed by applications as the steps or lack thereof taken in response to applications or any bullying complaints will likely be passed under the regulator’s microscope.
The 3 ‘P’s of Preparation
It is well recognised that prior planning and preparation prevent poor performance. As such, employers must prepare, prepare and prepare again.
Employers should be asking themselves whether they have workplace conduct policies, complaint and investigation procedures and employee training programs in place which deal with bullying-related issues and if so, when the last time was that these were revisited or updated?
The legal landscape relating to workplace bullying has changed significantly in the last two years with the introduction of Brodie’s law in Victoria, the harmonisation of occupational health laws, judicial comments in negligence claims and finally, the recent Fair Work Act amendments.
Employers must also assess whether they are sufficiently resourced to deal with such matters.
Employers should not underestimate the risk these matters pose to reputation, viability and industrial harmony within workforce generally. If employers are not actively assessing their risk, it is likely that employers will be caught out and forced to fight rear guard actions which cannot be good for business.