Cara Seymour, Senior Associate
What can the Government do to lower the incidence of bullying and alleviate its damaging effects?
There is no doubt that bullying claims and prosecutions have increased dramatically since “bullying” became a recognised (if somewhat inconsistently defined) threat to workers’ health and safety more than a decade ago.
Has workplace culture deteriorated as commercial imperatives drive everyone to work harder? More probably, an increased awareness of what is and what is not acceptable and lawful conduct in the workplace has led to a higher rate of reporting of incidents that may amount to bullying. Either way, “bullying” is on the political radar and the Federal Government’s workplace relations reform agenda.
On 12 February 2013, Employment and Workplace Relations Minister Bill Shorten announced the Government’s proposal to create an avenue of complaint to the Fair Work Commission (“FWC”) for employees who are bullied at work. The proposal is in response to a recommendation from the Standing Committee on Education and Employment of the House of Representatives in its report “Workplace Bullying: We Just Want it to Stop” released in October last year, that the Government allow bullied employees to seek individual recourse through an adjudicative process.
Responses to the proposal have ranged from the overwhelmingly positive to the underwhelmed and skeptical. The issues that divide opinion are necessity and effectiveness. Is another legal remedy to address bullying necessary or likely to be effective in the form proposed?
Recommendation 1 of the report adopts a popular definition of “bullying” as “repeated, unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”.
Under the Government’s proposal, employees alleging workplace bullying will have their applications to FWC expedited for consideration within 14 days. If the FWC is satisfied that a person has been subjected to workplace bullying it could make orders to remedy the conduct or prevent the conduct recurring including directing an employer’s action in a particular manner.
The FWC may also recommend that a matter be investigated and determined by a Work Health and Safety regulator under Work Health and Safety legislation, presumably where the conduct poses a more serious risk to health and safety or results in injury and where the employer does not appear to have taken all reasonably practicable steps to prevent that risk. Penalties of up to $51,000 for corporations may apply for failing to follow a FWC order.
As far as the actual implementation of the proposed new cause of action, little is known. Whether the jurisdiction of the FWC to make binding determinations will be expanded and more resources added to the FWC’s already overburdened dispute handling function remains to be seen. How the FWC will reach a determination in 14 days also remains a mystery, but these are not the issues that most concern the doubters.
There already exists a variety of individual complaint-based mechanisms for workers who have been bullied. These are discussed in detail in this edition.
The current understanding of “bullying” as an actionable wrong developed most rapidly in the work, health and safety and worker’s compensation jurisdictions. The discrimination jurisdiction also carries a large volume of bullying complaints. Importantly, in both these jurisdictions, complaints are circumscribed by the need to establish particular criteria, a workplace injury or serious risk of one or conduct based on a particular attribute such as sex, age, race or disability. Regulators in these jurisdictions have developed significant expertise in this area over the last decade.
More recently, the adverse action provisions of the Fair Work Act 2009 have made it easier for employees alleging workplace bullying to seek redress, at least as far as the conciliation stage. Where termination or resignation results from the conduct, unfair dismissal actions also remain available. When current remedial options are assessed, the new proposed ground of complaint does not appear to add anything and on further inspection, may even be detrimental.
The problem that has emerged when bullying is dealt with as a “workplace dispute” is that, increasingly, bullying complaints are being used by employees to challenge, impede or prevent legitimate management directions, performance management, disciplinary action and allocations of work by employers. There is a very real risk if the proposal goes ahead, that the FWC will be backlogged with unmeritorious claims of bullying and employees will misuse this avenue in order to bring more systemic workplace disputes before the FWC at short notice.
When an employee lodges a claim against an employer with an external agency, it is rarely likely to enhance trust and confidence in the relationship. Employers with responsive internal infrastructures to manage grievances fairly, consistently, confidentially and expeditiously are far more likely to effectively manage bullying in their workplaces and retain employees.
However, individual–complaint based mechanisms are never enough to engender cultural change. When it comes to workplace bullying, changing workplace culture is crucial. This is best achieved by a range of strategies including training and awareness raising programs, implementing policies on workplace behaviour, mentoring and positive leadership, the careful monitoring of workplace behaviour and internal communications.
At its core, bullying is about an abuse of power that causes harm to an individual. It is a human rights issue and it is a health and safety issue first and foremost. Work, health and safety regulators and anti- discrimination tribunals are already well equipped to deal with complaints in this area where internal grievance procedures have failed. Further, in both these jurisdictions, preventative strategies are built into the regulatory framework.
Perhaps it is time for the Government to focus more on incentivating the preventative measures proposed by the Standing Committee rather than an additional avenue for individual complaint.