Employment Law - Workplace Bullying
May 2014
On 1 January 2014, Section 789FD of the Fair Work Act 2009 (Act) came into effect granting the Fair Work Commission the jurisdiction to make orders to stop “Workplace Bullying”. But what does this actually mean?
What is Workplace Bullying
In short, bullying in the context of the Act is when a person or group of persons repeatedly behave unreasonably towards a worker or a group of workers and this behaviour creates a risk to health and safety. That risk may be to both the physical and psychological health of a worker. Prior to the commencement of these new laws, the Commission published a set of guidelines which indicates that the following may be considered as bullying under the new laws:
(a) aggressive or intimidating conduct;
(b) belittling or humiliating comments;
(c) spreading malicious rumours;
(d) teasing, practical jokes or initiation ceremonies;
(e) exclusion from work related events;
(f) unreasonable work expectations, including too much or too little work, or work below or the beyond the worker’s skill level;
(g) displaying offensive material; and
(h) pressing a worker to behave in an inappropriate manner.
Whilst this may sound very open-ended, the Act creates an exception for any conduct which is proven to be “reasonable management action carried out in a reasonable manner.” The Commission guidelines states that this would include:
(i) a performance management process;
(j) disciplinary action for misconduct;
(k) informing an worker about unsatisfactory work performance or inappropriate work behaviour;
(l) directing an worker to perform duties in keeping with their job description; and
(m) maintaining reasonable workplace goals and standards.
In the event that these actions are not carried out in a reasonable manner, the conduct may be regarded as bullying. An example of this may be disciplining an employee in a manner whereby discriminatory verbal insults are used or conducting a performance management interview which may later be proven to be predicated on suspicious grounds with respect to the employee’s underperformance.
What can the Fair Work Commission do?
Upon the application of a worker to the Commission to seek an Order to stop workplace bullying, the Commission will invite a response from the employer (as a business entity) and from the person or persons who were named in the worker’s application as being the persons who engaged in the bullying. Upon a review of both the application and the responses, the Commission may then either refer the parties to an mediation conducted by the Commission or where the circumstances would indicate that such an approach is unlikely to be successful, set the matter down for a hearing. In that hearing the parties may argue their case in a Court style (albeit a slightly less formal one). Workers and employers in this jurisdiction may be self-represented or may alternately seek leave from the Commission to retain a lawyer to act on their behalf.
Upon the conclusion of either a mediation or a hearing, the Commission may make Orders to stop the bullying (note that under this jurisdiction, the Commission cannot make Orders for compensation). As these laws are still relatively new, there has only been one meaningful decision which provides some guidance as to the form that these orders may take.
Scope of Orders which can be made In Applicant v Respondent (AB 2014/1052) (names suppressed), the Commissioner provided some guidance as to the form that anti-bullying Orders would take.
Due to the Suppression Order, the specifics of the worker’s complaint are difficult to ascertain but from the nature and scope of the Orders made it may be deduced that the employer was acting in an overly familiar manner with the worker in a way which could have been aggressive or overly complimentary. The Orders which were made with respect to the worker were as follows:
(a) the employer must complete any exercise at the employer’s premises before 8:00am;
(b) the employer must have no contact with the worker alone;
(c) the employer must make no comment about the worker’s clothes or appearance;
(d) the employer must not send any emails or text to the worker except in emergency circumstances; and
(e) the employer must not raise any work issues without notifying the Chief Operating Officer of the Respondent or his subordinate beforehand.
There is sure to be a great deal of interest over the remainder of 2014 in any future decisions or guidance by the Fair Work Commission regarding the Anti-Bulling Laws. Should you require any assistance with respect to understanding the operation of these laws in the coming months and beyond, please contact Bradfield & Scott Lawyers.
This article is not intended to be anything other than thought provoking and is intentionally not a comprehensive treatise. We welcome feedback and are happy to talk to anyone in the tourism industry who might seek elaboration on anything raised in this article.
What is Workplace Bullying
In short, bullying in the context of the Act is when a person or group of persons repeatedly behave unreasonably towards a worker or a group of workers and this behaviour creates a risk to health and safety. That risk may be to both the physical and psychological health of a worker. Prior to the commencement of these new laws, the Commission published a set of guidelines which indicates that the following may be considered as bullying under the new laws:
(a) aggressive or intimidating conduct;
(b) belittling or humiliating comments;
(c) spreading malicious rumours;
(d) teasing, practical jokes or initiation ceremonies;
(e) exclusion from work related events;
(f) unreasonable work expectations, including too much or too little work, or work below or the beyond the worker’s skill level;
(g) displaying offensive material; and
(h) pressing a worker to behave in an inappropriate manner.
Whilst this may sound very open-ended, the Act creates an exception for any conduct which is proven to be “reasonable management action carried out in a reasonable manner.” The Commission guidelines states that this would include:
(i) a performance management process;
(j) disciplinary action for misconduct;
(k) informing an worker about unsatisfactory work performance or inappropriate work behaviour;
(l) directing an worker to perform duties in keeping with their job description; and
(m) maintaining reasonable workplace goals and standards.
In the event that these actions are not carried out in a reasonable manner, the conduct may be regarded as bullying. An example of this may be disciplining an employee in a manner whereby discriminatory verbal insults are used or conducting a performance management interview which may later be proven to be predicated on suspicious grounds with respect to the employee’s underperformance.
What can the Fair Work Commission do?
Upon the application of a worker to the Commission to seek an Order to stop workplace bullying, the Commission will invite a response from the employer (as a business entity) and from the person or persons who were named in the worker’s application as being the persons who engaged in the bullying. Upon a review of both the application and the responses, the Commission may then either refer the parties to an mediation conducted by the Commission or where the circumstances would indicate that such an approach is unlikely to be successful, set the matter down for a hearing. In that hearing the parties may argue their case in a Court style (albeit a slightly less formal one). Workers and employers in this jurisdiction may be self-represented or may alternately seek leave from the Commission to retain a lawyer to act on their behalf.
Upon the conclusion of either a mediation or a hearing, the Commission may make Orders to stop the bullying (note that under this jurisdiction, the Commission cannot make Orders for compensation). As these laws are still relatively new, there has only been one meaningful decision which provides some guidance as to the form that these orders may take.
Scope of Orders which can be made In Applicant v Respondent (AB 2014/1052) (names suppressed), the Commissioner provided some guidance as to the form that anti-bullying Orders would take.
Due to the Suppression Order, the specifics of the worker’s complaint are difficult to ascertain but from the nature and scope of the Orders made it may be deduced that the employer was acting in an overly familiar manner with the worker in a way which could have been aggressive or overly complimentary. The Orders which were made with respect to the worker were as follows:
(a) the employer must complete any exercise at the employer’s premises before 8:00am;
(b) the employer must have no contact with the worker alone;
(c) the employer must make no comment about the worker’s clothes or appearance;
(d) the employer must not send any emails or text to the worker except in emergency circumstances; and
(e) the employer must not raise any work issues without notifying the Chief Operating Officer of the Respondent or his subordinate beforehand.
There is sure to be a great deal of interest over the remainder of 2014 in any future decisions or guidance by the Fair Work Commission regarding the Anti-Bulling Laws. Should you require any assistance with respect to understanding the operation of these laws in the coming months and beyond, please contact Bradfield & Scott Lawyers.
This article is not intended to be anything other than thought provoking and is intentionally not a comprehensive treatise. We welcome feedback and are happy to talk to anyone in the tourism industry who might seek elaboration on anything raised in this article.
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Mat Henderson
Lawyer Bradfield & Scott Lawyers Level 1, 175 Macquarie Street Sydney NSW 2000 Telephone: 9233 7299 Email: mhenderson@bradscott.com.au |
John Graves
Principal Bradfield & Scott Lawyers Level 1, 175 Macquarie Street Sydney NSW 2000 Telephone: 9233 7299 Email: jgraves@bradscott.com.au |
