Since 1 January 2014 employees who have been bullied at work have been able to apply to the Fair Work Commission for a range of remedies. Monetary compensation is not available as a remedy. It has been held that conduct occurring before 1 January 2014, when the laws commenced operation, can be considered in dealing with claims.
Prior to the introduction of the anti-bullying laws, there were estimates from the Commission that approximately 3,500 applications would be made in 2014. So far, this has not come to fruition, with fewer than 50 claims received in the first month.
It is not clear why so few applications have been made, given the considerable amount of media coverage of the anti-bullying regime prior to its commencement. Justice Ross, President of the Commission, stated in a media release that “January and February traditionally see a smaller number of lodgements with the Commission.” It may also be that the lack of financial remedies available to workers discourages claims which might otherwise be made. Either way, this is a positive sign for employers.
First substantive decision
On 6 March 2014 a Full Bench of the Fair Work Commission issued its first decision dealing with a substantive point regarding the anti-bullying laws.
The question referred to the Full Bench was whether conduct which occurred prior to 1 January 2014 can be considered when determining whether a worker has been bullied.
The case involved a worker who detailed instances of alleged bullying going back six years. The most recent incident occurred in May 2013. The employer argued the claim was not valid because the conduct complained of occurred prior to the commencement of the anti-bullying laws, and so could not be considered.
The Full Bench found that alleged bullying conduct which took place prior to the commencement of the legislation could be considered when determining whether a worker was bullied at work. The bench also commented that the intention of the legislation was to restrain future bullying conduct, not to punish past acts, and that to make an order under the new laws there had to be a risk of future bullying.
Outcomes for employers
Past conduct may not be relevant
An order to remedy bullying may only be made by the Commission where there is a risk that the worker will continue to be bullied at work. If there is a lengthy period between the last reported incident of bullying and an application to the Commission, it may be difficult for the worker to show that there was risk of further bullying when it had apparently ceased months earlier.
Reasonable management action
The bullying laws have a ‘reasonable management action’ exception, which has yet to be considered by the Commission. Employers are protected where the alleged bullying is reasonable management action taken in a reasonable way. This will exclude most performance management and disciplinary scenarios from the definition of ‘bullying’.
Internal grievance procedures are preferred
In remarks made to the National Workers’ Compensation Summit, Commissioner Cribb has recently expressed the view that it would be preferable for employees to utilise internal grievance procedures, rather than the Commission, to deal with workplace bullying.
The take away
The small number of applications so far is a great sign for employers. By ensuring you follow reasonable policies when dealing with performance or disciplinary issues, and you implement an internal grievance procedure, you can avoid a successful bullying claim. To find out more, read our 7 top tips to successfully manage a bullying complaint.