With less than two months until the Fair Work Commission becomes an anti-bullying umpire, Managers are at risk of being found to bully at work, even inadvertently, if their management actions are not assessed as reasonable.
Needless to say that the tips and tricks on how employers can defend their own bullying are already flying around!
New bullying laws and defense tactics
With less than two months until the Fair Work Commission becomes an anti-bullying umpire, it’s never been more important for employers to ensure their front-line managers are equipped to deliver a ‘defensible’ performance management message, a lawyer has warned!
Reforms to the Fair Work Act 2009, implemented by the previous Federal Government, will mean that from 1 January 2014, workers who reasonably believe they have been bullied at work will be able to make an application to the Commission for relief from ‘repeated, unreasonable behaviour … that creates a risk to health and safety’.
The Commission will be required to hear a matter within 14 days of an application being made, and will be empowered to make any order it deems appropriate, except for an order for pecuniary damages or reinstatement, such as an order for ‘the individual or group of individuals to stop the specified behaviour’ (for further examples, see the Explanatory Memorandum).
According to DLA Piper partner Murray Procter, employers are now worried these reforms could lead to a scenario of ‘performance management by Commission’.
The ‘big ticket issue’, as Procter calls it, is that bullying orders can become like a law, with aggrieved employees complaining to the Commission that an order has been breached and pursuing their employer for money.
Given the potential for employees to, essentially, insert an extra level of supervision over the way in which a business conduct performance management,
Procter said it is crucial for businesses to ensure front-line managers — the people who make decisions around performance management and deliver that message — are able to fulfil this function in a defensible way.
‘Employers need be confident that if an employee approaches the Fair Work Commission, they can establish for the Commission that managers and supervisors are following a robust performance management process and that the behaviour that they’ve been exhibiting doesn’t fit within the definition of workplace bullying,’ he said.
It is also important for employers who are called before the Commission to defend against a bullying claim to demonstrate they have — and are following — a ‘rigorous’ and ‘responsive’ complaints investigation process.
‘By coming to the Commission with at least a position that a claim is being addressed, you’ll be less susceptible to a bullying order than say if you fronted up to the commission and you had no internal robust response to the issue,’ he said.
‘If there is already an investigation on foot, for instance, the Commission can take this into account and might decide not to intervene until the process has been completed, but instead tell the employee, “you exercise your rights internally and at the end of that process, if you still find it’s unsatisfactory, then come back and we’ll have another look at it”,’ he said.(WTF)
‘The more organised you (the employer) are, the better position you’ll be in as a businesses to be able to convince the commission not to intervene, and that comes from having a tidy and robust internal HR infrastructure — the policies, the procedures, the resources — to be able to respond to issues as they arise.’
Procter said that while employees should not be discouraged from exercising their right to lodge an application for relief from bullying with the Commission, it would be prudent to educate them about the business’s right to performance manage staff.
‘One of the most important reasons for training is that you want to be able to manage an individual’s expectations of what they can get out of the performance management process,’ he said.
‘Bullying is a word that gets thrown around a lot and it is important [employees] understand what the Commission’s jurisdiction is there for. It’s not for a one-off conduct involving someone being upset with someone else, but conduct that has an impact on somebody’s health and safety.’
Procter said that while the Commission’s new function is a legitimate process for legitimate issues, there are still concerns around the potential for employees to exploit the system.(WTF)
‘Even for legitimate concerns, it’s going to be a frustrating step for employers to potentially be subject to Commission intervention right through the performance management process,’ he added.
In related news, Employment Minister Eric Abetz was recently quoted by Fairfax Media as saying the government would ‘eagerly watch the implementation of the [new bullying laws] from 1 January, and would welcome the Commission’s work to create what he labelled ‘a triage system’ for claims as they come in, tackling the most critical and time-sensitive cases first.
Prior to being elected to government, the Coalition promised to support the Commission’s new anti-bullying function, but only if there was a requirement for workers to take reasonable steps to resolve their concerns before elevating them to a proceeding before the Commission….
Update: 14 Nov 2030 – related article found in HR Daily:
Performance management process to face new scrutiny, lawyers warn
12 November 2013 7:22am
Performance reviews and disciplinary processes that can withstand outside scrutiny will become even more critical when the Fair Work anti-bullying regime comes into force next year, according to DLA Piper partner Murray Procter.
As previously reported, the amendments, set to take effect on 1 January, give employees an avenue to bring claims of bullying to the Fair Work Commission for quick intervention and adjudication.
DLA Piper is currently consulting with clients who are concerned that once the amendments are in force, employees who are undergoing legitimate performance management will thwart the process by lodging bullying claims that force the Commission to intervene.
“A person might say, ‘I’m being micromanaged, I’m therefore being bullied by my supervisor who’s paying unwarranted attention to my work’, or ‘The way in which they’ve called me to this meeting is too harsh’, and then the Commission will have to decide whether it’s reasonable management action taken in a reasonable way,” Procter says.
“Add to this the reality that the onus will be on the employer to prove the performance management was justified, and we could see frontline managers and supervisors losing control of the performance management process.”
It will therefore be “absolutely critical” that employers ensure their frontline managers are equipped to deliver a “defensible performance management message”, he says.
“Employers [will] need to ensure that their processes are going to withstand scrutiny from the Commission, and make sure the decisions they make around performance managing employees are defensible, taking into account the history of the performance of the person and all of the circumstances behind the decision to performance manage or discipline the person.
“What the Commission will be interested in is [whether the] management action is reasonable management action — that’s the exclusion from bullying.”
To prepare frontline managers and supervisors for “this extra layer of supervision over their performance management process”, employers should discuss the changes with them in detail, Procter says.
“You’ve got to make sure those frontline managers and supervisors are aware that their decisions can be challenged like this.”
He suggests employers review the performance management competencies and skills their managers have to ensure they all understand what is required of them and feel comfortable with the process.
The same goes for their ability to justify and conduct workplace investigations into alleged misconduct.
“The employer has to decide… what assistance do the frontline managers currently have around performance management and disciplinary processes, and what more can HR do for those frontline managers to educate them in an appropriate performance management process, or an appropriate disciplinary process that is going to withstand scrutiny in the Fair Work Commission?
“That could either mean HR themselves educating the frontline managers, or just revisiting those competencies with the frontline managers, or having external people come in to walk those frontline managers through the potential [issues] that can arise, from a legal perspective, in their interactions with their direct reports.”
If frontline managers don’t feel equipped to deal with potential challenges, there’s a risk they will just throw their hands in the air, say, “Look, it’s all going to be all too difficult”, and let poor performance go unchecked – which would be “unfortunate” for the business.
“But it doesn’t have to happen that way, providing the tools are there for the manager to rely on,” he says.
In some organisations or departments, a case-by-case approach to training will be warranted.
“Some of the supervisors might be right with one refresher; others might need a bit more guidance, and a bit more assistance in stepping through the process.”
Ensuring employees are well-educated in what is and is not bullying, and are aware of the internal grievance procedures available to them, could also improve an employer’s standing before the Commission — or even dissuade a worker from making a claim in the first place.
“One of the thresholds for bringing the application is that the employee has to reasonably believe that they have been bullied, and what is relevant to an employee’s reasonable belief is their degree of knowledge,” Procter says.
“Explain… ‘Look, you need to be aware that if it’s management action that’s reasonable, taken in a reasonable way, it’s not bullying — we have these checks and balances in place for our managers, so we’re confident that our managers do have the right skills to engage in that process, but if you do have a concern, here’s a process’, and it should be about raising it internally first.
“That’s important because the Fair Work Commission must take into account what avenues are already available to the person, and those avenues could include an internal grievance procedure.”
Employers that are able to convince the Commission that they have a robust internal process, and should be entitled to follow that, could well prevent further intervention, Procter says.
“If a business has an internal grievance procedure that still hasn’t been worked through by the employee, then they could front up to the Commission in response to a bullying complaint and say ‘Look, we’re not saying that there’s bullying, but we are saying we’ve got a process and we’re following it and we’d like the time to follow it to its conclusion’.
“The Commission has to take that into account, and they might say, ‘OK, go away, and come back if at the end of the process you still feel that you’re aggrieved’.
“If you don’t have [that process], you’ll potentially be putting yourself in the hands of the Commission to determine that process in circumstances where you might otherwise have been able to retain more control.”
One aspect of the amendments that remains unclear is how much weight the Commission’s recommendations will have, Procter adds.
“Say you’ve got two workers and there’s a stop-bullying order that’s been issued — if you’ve got a policy that says bullying’s not to be tolerated and you dismiss the [bully], how much can an employer rely on the earlier recommendation of the Commission to stop bullying… and would the Commission ever go so far as to say ‘That’s a breach of the policy’ and recommend disciplinary action?
“I think that’s still a question mark. I guess we’ll see how it plays out.”
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