Congratulations on your promotion to the role of National HR Manager of The Company! It’s your first day on the job and the morning has been a busy one. Suddenly, an email in your inbox from the FWC catches your eye. It’s an anti-bullying application lodged by an employee of one of The Company’s contractors (the “Applicant”) against a number of The Company’s employees in relation to bullying and harassing conduct between July and November 2013. The email says The Company has seven days to respond. You know that the FWC’s new anti-bullying jurisdiction commenced in January 2014 but must admit that you’re not across all the details. What does all this mean for The Company and what do you do now?

Why are we getting served with the application if the applicant isn’t an employee?

The fact that the Applicant is not an employee does not mean that they cannot bring an anti- bullying application before the FWC. Specifically, the anti-bullying laws apply to any ‘workers’ of a constitutionally-covered business. The definition of worker is considerably broad, extending beyond the employer-employee relationship and capturing a number of different ways that modern work relationships are organised.

For the purposes of the provisions, a worker is expressed to include:

• employees;
• contractors or subcontractors;
• employees of a contractor or subcontractor;
• employees of a labour hire company assigned to work for a particular business or organisation;
• outworkers;
• apprentices or trainees;
• students gaining work experience; and
• volunteers.

Since the definition of worker is so broad, the FWC’s anti-bullying case management model not only provides that a copy of an anti- bullying application lodged with them will be served on the worker’s employer/principal and the person and/or people who the worker alleges is bullying them, but also that a copy may be served on the person or business who employs or engages the person the worker alleges is bullying them (if different to their employer/principal). Responses to the application may be sought from all these parties, if the FWC believes that this is necessary. In this case, this includes The Company as the employer of the employees who have participated in the alleged bullying conduct.

Use of internal grievance procedures

While the FWC recommends and encourages the use of internal grievance and dispute resolution procedures at a workplace level through workers raising issues with their supervisor/manager, health and safety representative or the human resources department, there is also recognition that in some circumstances this will not be possible. Under the legislation, there is no requirement that an Applicant needs to have utilised internal grievance procedures before making an application to the FWC. So despite this being the first time you or The Company has heard of the complaint, the Applicant is not prevented from going straight to the FWC to seek a remedy.

Is the conduct really bullying?

The application states the conduct complained of includes:

• the employees’ repeated use an offensive ‘nickname’ when referring to the Applicant;
• some employees refusing to give information required for efficient delivery on a non-urgent project;
• the Applicant being excluded from social events on a regular basis by the group;
• a decision by the head of the work area to set an ‘ambitious’ time-frame for delivery of the project; and
• a decision by the head of the work area to reduce the duties of the contractor and reallocate them to another team member after hearing management comment about the contractor ‘slacking off’.

Section 789FD of Fair Work Act 2009 (Cth) (“FW Act”) defines bullying as being when:

“A person or a group of people repeatedly behave unreasonably towards a worker or a group of workers and that behaviour creates a risk to health and safety.”

However, it does not include reasonable management action carried out in a reasonable manner. It should be noted that “reasonable management action” for the purposes of the Act is broader than under other regimes (such as Workplace Health and Safety) and the explanatory memorandum appears to suggest that everyday actions to effectively direct and control the way work is carried out – such as the allocation of work and the giving of fair and constructive feedback on performance, is also intended to be covered by this exclusion.

On the facts, there are a number of behaviours that the Applicant has complained of that are likely to be considered bullying (e.g. name calling and ostracisation), while a number fall within the grey area between reasonable management action carried out in a reasonable manner and bullying, depending on the extent of such conduct.

Conduct before 1 January 2014

On 6 March 2014, the Full Bench of the FWC handed down a decision in Ms Kathleen McInnes [2014] FWCFB 1440, which held that it is not prevented from considering behaviour that occurred before the start of the new bullying jurisdiction on 1 January 2014. Although it had been argued that the threshold test, which requires that the worker “is at work” in a constitutionally- covered business at the time of making their application, implies that a worker can only be bullied at work from a point in time when the legal definition of ‘bullying’ for the purposes of the Act was in force, this argument was rejected by the Full Bench.

Specifically, Justice Ross, Vice-President Hatcher and Commissioner Hampton found this referred to the requirement for the worker to still be party to some form of work relationship (i.e. that they had not been terminated) and that while the legislation did not have retrospective operation, there was a distinction between legislation which has an effect on past events, and legislation which bases future action on past events. It was held that the FWC’s jurisdiction to make anti-bullying orders fell within the latter category, and therefore there was no issue of “retrospective application” of the anti- bullying laws.

Therefore, provided that the Applicant is still undertaking work for The Company, they are entitled to bring this claim seeking anti-bullying orders against their employer, The Company and its employees.

What happens after the response is filed?

After you have submitted your response to the application, a report is prepared for the Panel Head of the Anti-bullying Panel (currently Commissioner Peter Hampton), who determines whether to assign the application to mediation, a preliminary conference, a directions hearing or directly to a hearing.

Mediation before the FWC is an informal, voluntary, private and generally confidential process facilitated by a FWC Member or by one of the FWC’s anti-bullying mediators. As the process is voluntary, there is no obligation to participate. However, it may be an ideal opportunity to understand the nature and detail of the Applicant’s complaint, particularly if a complaint was not raised internally and the anti-bullying application is the first time the behaviour has been drawn to The Company’s attention. This is also an ideal opportunity for the parties to confidentially come to an agreement on possible options for resolution.

In light of the aim of the jurisdiction to stop bullying and return parties to a functional working relationship, it has been indicated by the FWC that it will not promote or recommend the resolution of these applications on the basis of monetary payments.

If the matter is not suitable for mediation, or the matter cannot be resolved by the parties through this means, then a conference or hearing may be held – a conference is generally conducted in private, while a hearing is generally open to the public.

Should the matter still fail to be settled after a hearing has been convened, then the FWC may make a binding decision and/or order designed to stop the workplace bullying. Such orders are designed to be binding on any party to a bullying claim (including  employers and individuals). Parties are required to comply with these orders or risk the imposition of substantial civil penalties of up to 60 penalty units ($10,200 for an individual or $51,000 for a body corporate).

Other than an order for monetary compensation, the FWC may make any order appropriate to stop the bullying, including but not limited to:

• requiring the individual or group of individuals to stop the specified behaviour;
• regular monitoring of behaviours by an employer or principal;
• compliance with an employer’s or principal’s bullying policy;
• the provision of information, additional support and training to workers; and
• review of the employer’s or principal’s bullying policy.

However, in making an order, the FWC is required to take into account:

• any outcomes arising out of an investigation into the alleged bullying conducted by another person or body (this may include internal investigations, or investigations by third parties such as WorkCover); and
• any procedures available to the worker to resolve the alleged bullying and any outcomes arising from those procedures (including internal complaint mechanisms).

As the FWC is a no cost jurisdiction, parties to a workplace bullying application will usually have to pay their own legal costs, unless it can be shown that a party has acted vexatiously or without reasonable cause, or it should have been apparent that the application or response had no reasonable prospect of success.

Developments in the jurisdiction so far…

As at mid-February 2014, the FWC had received 66 anti-bullying applications since the commencement of the jurisdiction on 1 January 2014. Most of these claims were brought by workers, alleging that they had been bullied by a supervisor or manager or by a group of employees. It will likely come as no surprise to most HR managers and practitioners that the majority of these claims have been in relation to disciplinary action.

Of these 66 applications, nine were withdrawn at a preliminary stage. It is also interesting to note that two of the 66 applications were by supervisors who claimed subordinates were bullying them, while one was by an employee who claimed to be bullied by the manager and staff of another business.

Risks and risk management

Since the introduction of the Fair Work Amendment Bill 2013 (Cth) and the intention to introduce the anti-bullying jurisdiction, bullying is a topic that has received considerable media interest. Accordingly, one of the biggest risks associated with an anti- bullying application for your organisation will be reputational.

While applications, mediations and preliminary conferences are confidential between the parties, formal hearings are open to the public and any subsequent decision or order made by the FWC is required by law to be published. As such, your organisation’s greatest public exposure is at this stage of the matter.

Although applications to the FWC can be made under section 593(3) or 594 of the Act to supress details and names or for a private hearing, prevention and early intervention remains the best form of risk management for your company against a bullying application.

This may involve:

• educating staff about what is expected of them from a behavioural and cultural perspective;
• ensuring that you have in place policies and procedures around bullying and harassment;
• advertising the processes and mechanisms that your company has in place to deal with issues such as bullying and harassment;
• encouraging workers to come forward with their complaints and grievances about bullying and harassment; and
• dealing with these matters appropriately by undertaking substantively and procedurally fair investigations of any complaints.

In addition to assisting employers in responding to anti-bullying applications, PCS has capabilities and resources to assist you to protect yourself and your organisation.