Workers who think they’re being bullied at work can apply to the Fair Work Commission for an order to stop the bullying. Workplace bullying can also be a breach of health and safety laws. State and territory health and safety organisations may decide to respond to complaints about workplace bullying and can prosecute for breaches of health and safety laws.
Bullying is when:
- a person or group repeatedly behaves unreasonably towards another person or group at work, AND
- the behaviour creates a health and safety risk.
Bullying behaviour may involve, for example, any of the following types of behaviour:
- aggressive or intimidating conduct
- belittling or humiliating comments
- spreading malicious rumours
- teasing, practical jokes or ‘initiation ceremonies’
- exclusion from work-related events
- unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
- displaying offensive material
- pressure to behave in an inappropriate manner.
However, in order for it to be bullying the behaviour must be repeated and unreasonable and must create a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
WHAT IS REASONABLE MANAGEMENT ACTION?
Reasonable management action may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriatework behaviour
- asking a worker to perform reasonable duties in keeping with their job
- maintaining reasonable workplace goals and standards.
However, these actions must be conducted in a reasonable manner. If they are not, they could still be bullying.
BULLYING OR DISCRIMINATION?
The Fair Work Act has different rules to stop bullying and discrimination.
Discrimination happens when there is ‘adverse action’ because of a person’s characteristics like their race, religion or sex.
Bullying happens when someone repeatedly behaves unreasonably towards another person or group and that behaviour creates a risk to health and safety. The behaviour doesn’t have to be related to the person or group’s characteristics (race, religion, sex, etc). The behaviour also doesn’t need to be an ‘adverse action’.
WHAT IS THE PROCEDURE?
Any person who is:
- a worker (a ‘worker’ is any individual who performs work in any capacity,including as an employee, contractor, subcontractor, outworker, apprentice, work experience student, trainee or volunteer); and
- works in a constitutionally covered business (which is most businesses); and
- reasonably believes that he or she is being bullied at work.
1. The worker makes an application
To commence the claim, all the bullied worker has to do is complete and submit the Fair Work Commission Form F72 and pay the application fee which is (currently) $65.50. There is no time limit for lodging the application but the worker must still be working at that business.
2. After the application is lodged
The Commission has to ‘start to deal’ with the application within 14 days after it is submitted.
The Commission will then send an application to the employer, the alleged bullies and their employers (if different) and their representatives. It will also require that the employer and the alleged bully complete and return their response to the claim.
3. Dealing with the application
Once the commissioner has received all the information it will notify the parties of a time and date for them to attend a mediation, conference or hearing.
If the matter is sent to mediation then it can be resolved by agreement between the parties. If it isn’t resolved at mediation it can proceed to a conference or hearing.
If a matter goes to a conference or hearing then the Commission will determine the application and make an order that the parties must follow.
The Commission will only make orders if it finds that:
- The worker has made a valid application;
- The bullying has occurred; and
- There is a risk of further bullying occurring
WHAT CAN YOU GET?
The Commission has the power to make any order that it considers appropriate (other than compensation orders) to prevent the worker from being bullied further at work.
The type of orders that are made by the Commission could include requiring the bully to stop the behaviour; requiring the bully to be monitored by the employer; compliance with, or review of, an existing bullying policy; and so on.
Any person or business who contravenes an anti-bullying order will be exposed to a civil penalty of up to $10,200 for individuals and $51,000 for corporations per contravention.
WHAT ARE MY OPTIONS?
The anti-bullying laws may be a useful tool for employees who want to continue to work in the organisation or business. Practically, it may be difficult for employees who are working in a small to medium sized business to obtain results. This is because there may be no opportunity for employees to be separated from one another. Whist the Commission can make an order to prevent bullying, it is difficult to compel people to be nice to and work alongside one another.
The anti-bullying laws are also an inappropriate tool for workers who want to leave the organisation and get compensation for the bullying. In these circumstances it may be more appropriate to bring a breach of contract claim, an alternative claim in the Fair Work Commission or to lodge a WorkCover claim.
When considering the terms of the order the Commission is required to consider whether there was / is any procedure available to a worker to resolve the grievances or dispute, as well as the final or interim outcomes of any other investigation (if applicable). It is possible, however, for a worker to go straight to the Commission and by-pass any internal grievance process that the employer may have.
In the event that the matter is not brought to the employer’s attention it may be difficult for the employer to investigate the matter, assess its validity and take the appropriate steps to resolve it. It could therefore be an unnecessary use of time and money in a situation where the matter could have been managed and resolved internally.
Further, the Fair Work Commission is a no-cost jurisdiction which means that, other than in limited circumstances a party will not be ordered to pay the costs of the successful party. Given that the cost of lodging the application is relatively inexpensive vexatious or unmerited claims could be lodged. For example, a complaint could be made by an employee who is being performance managed for poor performance or misconduct as a tactic to prevent any adverse consequences of the performance management.
PH Solicitor is here to assist and provide advice in this area of workplace bullying law.
Call Paul Horvath today on (03) 9642 0435 to speak about your individual situation.