Fair Work Commission workplace bullying jurisdiction - now in operation

Articles Written by Jan Dransfield (Partner), Andrea Sun

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.

What can the FWC do?

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:

  • by an individual or group of individuals towards the worker or a group of workers of which the worker is a member;
  • which creates a risk to health and safety.

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.

What does it mean for my organisation?

The FWC has published a Benchbook to guide parties on its operation. Some insights from the Benchbook include:

  • there is no specific number of incidents required for behaviour to be considered "repeated", nor does the same specific kind of behaviour have to be repeated;
  • behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner. Examples of what may constitute management action include:
    • performance appraisals;
    • ongoing meetings to address underperformance;
    • counselling or disciplining a worker for misconduct;
    • modifying a worker's duties including by transferring or re-deploying the worker;
    • investigating alleged misconduct;
    • denying a worker a benefit in relation to their employment; and
    • refusing an employee permission to return to work due to a medical condition;
  • for management action to be considered reasonable, generally:
    • it does not need to be perfect or ideal;
    • a course of action may still be "reasonable action" even if particular steps are not;
    • any "unreasonableness" must arise from the actual management action in question, rather than the worker's perception of it; and
    • the FWC may consider whether the management action significantly departed from established policies or procedures, and if so, whether the departure was reasonable in the circumstances;
  • an order in relation to workplace bullying may only be made by the FWC where it finds there is a risk of the bullying continuing. In most circumstances this will mean that an order cannot be made where the worker is no longer in the employment relationship where the bullying occurred;
  • in light of the potential for disclosure of sensitive personal information which may affect the reputation of individuals, the FWC has power to:
    • order that all or part of a hearing be held in private;
    • restrict the persons who may be present;
    • prohibit or restrict the publication of names and addresses of persons appearing at a hearing; and
    • prohibit or restrict the publication of evidence given at a hearing, documents in the proceedings and/or the FWC's decision in relation to a matter; and
  • the FWC considers that it has the power to make orders directed to applicants, the individuals whose behaviour has led to the application and their respective employer or principal.

What should my organisation do?

Organisations should take steps to minimise the risk of an application being made to the FWC, including:

  • implement policies on bullying, discrimination, sexual harassment and complaints handling if the organisation has not already done so;
  • review existing policies to ensure they are consistent with the new jurisdiction and the Safe Work Australia Guide for Preventing and Responding to Workplace Bullying;
  • evaluate risks arising from the potential for bullying in particular work areas or workplaces;
  • update the organisation's coaching and mentoring programs;
  • review performance management and disciplinary processes; and
  • train managers and staff to behave appropriately, understand their responsibilities and proactively manage issues at an early stage.

If we have received a complaint, what should we do?

Recent cases highlight some lessons for employers when investigating complaints.

Involve the right people from the outset

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 [2013] FWC 8142);

Get both sides of the story

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) [2013] QCAT 243).

Don't jump to conclusions

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 [2013] FWC 4111).

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).