Changes to the Fair Work Act provide further motivation for employers to ensure their staff know what bullying is – and what it’s not.
Starting on 1 January 2014, workers who believe they have been bullied at work will be able to apply directly to the Fair Work Commission for assistance under employment law.
The Fair Work Commission must start to deal with the matter within 14 days of receiving the complaint by informing itself of the matter, holding a conference, or holding a hearing.
If it is satisfied a worker has been bullied at work and there’s a risk this will continue, the Fair Work Commission can make any order it considers appropriate to stop the bullying, for example requiring individuals or groups to stop specified behaviours, or commencing regular monitoring of the employer’s actions.
The Fair Work Commission, in making orders or considering the matter, must take into account the employer’s internal dispute procedures and the outcomes of any management of the dispute internally.
For this reason, it is now more important than ever for employers to have up-to-date, comprehensive grievance and investigation procedures that are “meticulously” followed and in line with workplace law.
If you can demonstrate that you’ve got those procedures, that they’re rock solid and you have meticulously complied with them, and the outcome was appropriate in the circumstances, you may prevent the matter escalating further under workplace law.
At present, employees who wish to seek orders during the course of their employment have to make an application in the Federal Court or Federal Circuit, and bear the cost of doing so even if they’re successful, because it’s largely a no-cost jurisdiction. As a result, very few do.
Under the new workplace laws, there is concern that employers will be “marched to the commission” much more frequently than they should be.
On a day-to-day basis, advising employers on workplace law, what we see is a lot of claims that fall very short of bullying and harassment causing a risk to work health and safety.
But from 1 January, employers will have to “front up” to the Commission to deal with all complaints.
Experienced HR professionals might be able to quickly and concisely present the employer’s position to lay the matter to rest, but an employer is still there, still in the Commission, and much further into it than the employer would have been without these workplace laws.
Even for senior HR professionals, approaching the Fair Work Commission without legal support could be risky as it’s not clear as yet how much of this will be dealt with on record or off record as the Fair Work Commission must inform themselves of the matter eg, a conference or a hearing. Thus, to the extent that it’s on the record, it could be quite dangerous for employers to be acting in these sorts of matters on their own.
There is usually a provision in the Work Health and Safety Act that says if a matter is being dealt with in any other jurisdiction, it can’t be dealt with under the Work Health and Safety legislation, to basically stop forum shopping.
However, these new amendments specifically allow this in relation to bullying. There can be a matter in the Fair Work Commission, but separate matters under the Work Health and Safety Act.
The Fair Work Commission may also refer the matter to a work health and safety regulator.
This “raises the stakes” for employers to the extent that they could be dealing with an industrial dispute in the Fair Work Commission that ultimately ends up with a work health and safety regulator, with harsh penalties attached.
We are dealing with disputes during the course of employment rather than post-termination, and disputes that raise health and safety issues which may also be dealt with by the regulator. The Fair Work Commission must also take into account investigations undertaken by the regulator and the outcome of those investigations, so there’s significant crossover.
Education is Key
To discourage employees from making misguided claims in the first place, education is key.
Employers should have very clear, comprehensive policies internally that say what is bullying and what is not bullying under workplace law.
It’s particularly important to educate staff about what actions fall short of bullying for the purposes of making a complaint – such as reasonable management action or an interpersonal conflict in the workplace.
Employers will also avoid unnecessary intervention if employees feel comfortable making internal grievance procedures their first port-of-call.
If employees feel that their matter is very quickly being dealt with internally – openly, transparently and efficiently, then clearly from a cultural or a psychological point of view there’s less likelihood the employee’s going to escalate that matter and go to the Fair Work Commission.
Tips for Employers
We strongly recommend that employers review and update their:
- counselling and disciplinary procedures – to ensure they are in a position to demonstrate “reasonable management action”
- anti-bullying policies – and provide associated training to employees and managers in relation to these
- grievance, investigation and dispute resolution procedures – given that the Commission must, in making orders, take into account procedures available to workers to resolve disputes and any outcomes arising from those
If you are unsure of how to go about discussing the issue of bullying with your employees, consult a workplace lawyer Sydney or an experienced HR lawyer for practical employment advice and tips on how to address this difficult area.
If you have any questions in relation to this article or if you would like any assistance in other employment law matters including employment contracts or employer obligation under the Fair Work Act, please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers about your employment law issues.