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The Fair Work Commission's (FWC) workplace bullying jurisdiction commenced on 1 January 2014. This article provides insight into the operation of the jurisdiction and how your organisation can effectively investigate a complaint.
A worker who reasonably believes he or she has been bullied at work can now apply to the FWC for an order to prevent the bullying. "Bullied at work" is defined in the Fair Work Act 2009 (Cth) (FW Act) to mean repeated unreasonable behaviour:
The FWC must start to deal with an application within 14 days after the application is made. If the FWC is satisfied the worker has been bullied at work and there is a risk the bullying will continue, the FWC can make an order (other than for a financial payment) to prevent the worker from being bullied at work.
The FWC has published a Benchbook to guide parties on its operation. Some insights from the Benchbook include:
Organisations should take steps to minimise the risk of an application being made to the FWC, including:
Recent cases highlight some lessons for employers when investigating complaints.
An employee was reinstated after the Operations Manager who conducted the investigation into an alleged safety breach did not ask questions that should have been asked, did not exclude witnesses from interviews due to conflicts of interest and drew conclusions from information that appeared to be without substance. The FWC noted the inexperience of the Operations Manager in conducting investigations and commented that the involvement of HR in the process was too late. Accordingly, on receiving a complaint, organisations should identify as soon as possible the individuals best placed to handle or investigate the complaint, taking into account their knowledge, experience and the nature of the allegations (Mr Michael Duncan v Bluescope Steel Ltd T/A Bluescope Steel  FWC 8142);
An employer's investigation into sexual harassment was found by the Queensland Civil and Administrative Tribunal to be flawed because the employer did not put the complainant's allegations in full to the perpetrator. The perpetrator was considered to be largely insensitive to what had upset the complainant and was not given an opportunity to provide information that could have influenced the employer's findings. Putting material to the alleged perpetrator is a matter of procedural fairness which will not only assist in scrutiny of the investigation process, but could also assist defend any potential claim brought by the perpetrator (McCauley v Club Resort Holdings Pty Ltd (No 2)  QCAT 243).
An employee was found to have been unfairly dismissed after her employment was terminated for alleged gross misconduct. Allegations of bullying had been made against the employee by a former co-worker in the co-worker's exit interview. The employer held two meetings in one day with the employee about the allegations and terminated her employment on the same day. The FWC noted the bullying was alleged to have taken place 17 months before the termination, the employer did not act on the complaints until the alleged victim resigned and the alleged perpetrator had been experiencing significant personal stress at the time the alleged bullying took place. The FWC warned employers "not to confirm as bullying and gross misconduct behaviour… which is not pursued in any vigour and relates to incidents which occurred some time ago" (Mrs Karen Harris v WorkPac Pty Ltd  FWC 4111).
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Deadlines to lodge your Modern Slavery Statement(s) have now shifted to account for the disruption and complications caused by COVID-19.
This piece is designed to prompt thoughts of what changes may be required in private M&A documents in order to accommodate and allocate risks relating to COVID-19 and the fallout from this pandemic.