The Government’s response to a parliamentary inquiry into workplace bullying supports amendments to the Fair Work Act 2009 (Cth) (the “FW Act”) that will ensure that employees who are bullied at work will be able to get help quickly with a focus on early intervention through the Fair Work Commission (the “FWC”). Other amendments to the Fair Work Act will include enabling the FWC to make orders to deal with the complaint and/ or to refer to the relevant state Work Health & Safety (“WHS”) regulator.

While it is not clear at this stage, PCS assumes that the relevant state or territory WHS regulator would then be required to consider prosecuting the “bully”, the employer and any person who may have breached their obligations under existing WHS laws.

We have warned employers, officers and workers in the past about the risk of a WHS prosecution arising from a bullying incident. With the increased scrutiny of matters referred by the FWC, prosecutions by the relevant WHS regulators for bullying are likely to be more common.

Individual obligations under WHS

Under the harmonised WHS laws, managers must exercise due diligence to protect against bullying and co-workers must take reasonable steps for the health and safety of others at the workplace as well as comply with any reasonable instruction and co-operate with any reasonable policy or procedure (generally this will be of the employer).

How to avoid personal liability under WHS

It is important that line managers and human resources managers are aware of this increased risk of prosecution and audit their own behaviours and practices in relation to bullying.

Managers are responsible for ensuring that all employees understand that bullying is not tolerated in the workplace and for taking early corrective action to deal with behaviour which may be offensive or intimidating.

If a manager feels that a reported incident might constitute bullying and the manager/supervisor feels that the nature of the complaint is outside their expertise, he or she will refer the matter to the Manager, Human Resources.

Should the FW Act be amended then there will be further imperative on the prevention of bullying given that the FW Act as it currently stands holds individuals “involved” in a contravention of certain parts of the FW Act to have themselves contravened the FW Act rendering them subject to a penalty.

Avoiding actions for defamation

Managers must remember that an accusation of bullying can be potentially defamatory, especially if confidentiality is not observed and a person’s reputation is unfairly damaged. In order to avoid a civil action for defamation, managers should ensure discussions, information and records related to complaints should remain factual and confidential. All documentation and details of bullying enquiries and grievances should be kept securely by managers or Human Resources.