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Watch out: New cause of action against bullies and employers that permit bullying

By Kristin Ramsey13 Feb 2013

Yesterday the Federal Government released its response to the report that came out of the House of Representatives Standing Committee on Education and Employment’s inquiry into workplace bullying last year.

In their report the Committee made 23 recommendations ranging from initiatives such as the adoption of a standard definition of workplace bullying, the establishment of a workplace bullying advisory service, and the implementation of criminal laws in each State and Territory that are comparable to the Victorian “Brodie’s Law”.

The Government’s response indicates that it supports (or supports in principle) 19 of the Committee’s 23 recommendations.

Most significantly for businesses, the Government has supported the recommendation that arrangements be put in place to allow an individual right of recourse for victims of workplace bullying.

In its response the Government announced that it will amend the Fair Work Act 2009 (Cth) to include provisions that allow a worker affected by workplace bullying to apply to the Fair Work Commission to deal with the complaint.

Under the proposed new provisions the Commission will:

  • be required to deal with an application as a matter of priority by listing it for consideration within 14 days;
  • be able to refer the matter to work health and safety regulators for investigation (which, depending on the circumstances, may in turn lead to prosecution of the employer or other parties involved);
  • have the power to make orders it considers appropriate to remedy or prevent the bullying from recurring (which could include requiring employees involved in the bulling and/or the employer to do or not do certain things); and
  • have the power to impose a civil penalty of up to $33,000 on employers that fail to comply with an order of the Commission in relation to a bullying complaint.

The text of the proposed amendments is expected to be introduced to Parliament in March of this year with a view to the new provisions commencing from 1 July 2013.

At this stage many details of the proposed new regime are unclear. For example it is not clear:

  • whether applicants will be required to first raise their complaint with their employer before making an application to the Commission;
  • whether it is only employees that will have access to this jurisdiction or whether it extends to “workers” in a broader sense;
  • whether complaints can be brought against individual perpetrators or only the employer; or
  • whether the Commission will have the power to make orders for the payment of compensation.

What does this mean in practice?

It is currently very difficult for employees who are subjected to workplace bullying to access effective legal remedies to resolve the situation (unless the bullying constitutes a form of unlawful discrimination or sexual harassment, or the employee has suffered a significant personal injury as a result of the conduct).

Should the proposed amendments come to pass, for the first time in Australian history employees will have ready access to a remedy specifically targeted at workplace bullying.

This will have a significant impact on businesses, as they are highly likely to find themselves in front of the Commission in circumstances where they have not taken complaints of workplace bullying seriously or have not conducted proper investigations.

In addition, the Commission’s power to refer matters to the relevant state WHS regulator means that in more serious bullying cases there is a much higher risk of the regulator taking enforcement action against the employer (and perhaps even the perpetrator of the conduct).

What should businesses do?

Businesses already have an obligation to ensure that workers are not subjected to bullying or harassment in the workplace. These obligations arise under workplace health and safety legislation and general duty of care requirements.

As such, irrespective of whether or not the proposed amendments come to pass, all businesses should ensure that they have well documented policies regarding bullying and harassment, that staff are adequately trained in these policies and that there is a robust complaints handling process.

Greater scrutiny of practices in relation to bullying and harassment will arise in the event that the proposed amendments to the Fair Work Act come to pass. Should this occur, all businesses would be well advised to:

  • review and update:

- bullying and harassment policies to ensure that they are comprehensive and take into account the legislative amendments; and
- complaints and grievance handling processes to ensure that they are robust and can withstand legal challenge; and

  • conduct refresher training for:

- all staff on bullying and harassment and what  to do if they experience bullying or harassment in the workplace; and
- managers and supervisors on how to investigate and resolve complaints of bullying or harassment.

Hynes Legal’s Workplace Relations, Health and Safety team can assist your business with each of the above steps and can also provide advice on dealing with workplace bullying and harassment. Please contact Kristin Ramsey if you require any assistance in this or any other workplace matter.