The new Fair Work anti-bullying laws have started (on 1 Jan 2014) and most would agree that the best way for bullies (incl. employers) to avoid having to appear before the Fair Work Commission (FWC) is to make sure that they don’t bully in the first place. Employers should view the Fair Work Commission’s new anti-bullying laws as an opportunity to eradicate bullies, and not as a threat.
Over the past few years employers have been quite challenged by bullying complaints, and have lacked clear and authoritative guidance on how to deal with them. The Fair Work Commission now has the ability to intervene against workplace bullying in a timely manner – but many employers are too concerned about a possible increase in complaints. We believe hat employers should simply take the opportunity to recognise and stop all bullying within their workplace, by using the Fair Work’s Commission (FWC) examples of bullying, which are stipulated in its Anti-Bullying Benchbook.
How to recognise and stop workplace bullying?
The following ‘ways not to be a bully’ are based on the FWC’s examples of bullying as provided in its Anti-Bullying Benchbook.
1.Ensure everyone behaves in a reasonable manner
It is worth noting that the term “unreasonable behaviour” is actually not defined in the Fair Work Act but will be interpreted by the FWC depending on the facts of any particular/individual case. The FWC’s Anti-Bullying Benchbook however has tried to be more explicit about what behaving in a reasonable manner means, based on previous bullying cases that have been heard before courts and tribunals. The FWC also notes that many of the examples it gives are extreme cases of bullying and that bullying ‘can involve less overt, less severe and more subtle behaviours’.
It has been proposed that if you would not like someone behaving towards you in a similar manner, then the behaviour is likely to be seen or deemed as unreasonable.
2. People should not be aggressive nor intimidating
This type of bullying behaviour includes actual assault(s) and threats of bodily harm.
In the case of Naidu v Group 4 Securitas Pty Ltd (2005) NSWSC 618, a security guard was subjected to a range of repeated bullying behaviour, including physical and sexual assault. He was also threatened with for example ‘I will do you’ .
Goldman Sachs JBWere Services Pty Ltd v Nickolich  FCAFC 120) is another real case example of this sort of disgusting bullying behaviour. In this case, an investment adviser’s supervisor subjected [the worker] to ‘… “malicious” personal attacks, “threatening and disturbing” actions and comments including false accusations and a “barrage of insults and abuse” …’
3. People, including managers and supervisors, should not make belittling, discriminatory or humiliating comments and don’t make fun of the individual, this includes using nasty nicknames
Styles v Murray Meats Pty Ltd (Anti-Discrimination)  VCAT 914: in this case, a counter sales assistant at a butcher’s shop endured many sexually explicit comments either directed personally at her and generally in relation to women.
4. Never victimise a worker
Victimisation not only includes blaming a worker for things that they have not done, but also includes requiring a worker to work unreasonably i.e long hours, requiring unreasonable amounts of work such as making the worker do the work of co-workers, and discipline requirements compared to co-workers. Victimisation of a particular worker can also include unreasonable refusal of a worker’s entitlements; for example, to annual leave.
5. Never spread malicious rumours or gossip about a worker
A common example of malicious rumour happens when a worker is unexpectedly promoted and malicious rumours/gossip of how that worker ‘managed to get the job’ are spread.
A good rule to go by is to ask yourself “how would I feel if this (spreading of false malicious rumours) happened to me”
6. Be very careful with practical jokes or (sick) ‘initiation rites’ of new workers
Practical jokes and (sick) “initiation rites” have received quite a bit of media attention because the “extreme” behaviour.
(WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004)  NSWIRComm 317: In this case WorkCover NSW successfully prosecuted a manufacturer when a 16-year-old new apprentice was wrapped in cling wrap during a 30 minute ‘initiation ceremony’ by a group of older co-workers. The apprentice was also spun around on a trolley while covered in sawdust and glue, and having sawdust forced into his mouth as well as a fire hose squirted into his mouth.
7. Don’t exclude certain workers from work-related events and meetings
Excluding certain individuals from work-related events (eg social club) will not create a productive work environment and happy workplace culture.
Certain types of workplaces may make this sort of more subtle (but real) bullying more intolerable than others; for example, the police force.
Exclusion from various meetings is another common example of this sort of bullying. Same applies to excluding a particular worker from a work group entirely.
8. Employers should not have unreasonable work expectations
The most common and obvious example of unreasonable work expectations includes requiring unreasonable hours and amounts of work and refusing to provide requested assistance or help.
Creating so called “performance management” issues about work errors that ‘were so inconsequential as to be almost laughable’ is another example of this sort of bullying.
Just remember that, as is the case with workcover, the Fair Work Act also explicitly excludes ‘reasonable management action conducted in a reasonable manner’.
Management action includes but is not limited to, any one or more of the following:
- appraisal of the worker’s performance
- counselling of the worker
- suspension or stand-down of a worker’s employment
- disciplinary action taken in respect of the worker’s employment
- transfer of the worker’s employment
- demotion, redeployment or retrenchment of the worker
- dismissal of the worker
- promotion of the worker
- reclassification of the worker’s employment position
- provision of leave of absence to the worker
- provision to the worker of a benefit connected with the worker’s employment
- training a worker in respect of the worker’s employment
- investigation by the worker’s employer of any alleged misconduct:
- of the worker or
- of any other person relating to the employer’s workforce in which the worker was involved or to which the worker was a witness
- communication in connection with an action mentioned in any of the above.
Also see our article ” The chameleon-like nature of reasonableness in the context of stress claims” for more info about reasonable management action conducted in a reasonable manner
New anti-bullying regime an opportunity, not a threat
Employers should view the Fair Work Commission’s new anti-bullying laws as an opportunity, not a threat, according to lawyer Lesley Maclou, who says much of the publicity surrounding them is based on myths and misconceptions.
In recent years employers have been “incredibly challenged” by bullying complaints, and have lacked clear, authoritative guidance on how to deal with them, the Truman Hoyle partner says in an HR Daily Premium webcast on the new anti-bullying regime.
Now the Fair Work Commission has the ability to intervene in a timely manner – but many employers are too concerned about a possible increase in complaints and claims to appreciate the benefits.
“This jurisdiction is not about compensation… It’s about trying to eliminate bullying in the workplace [and] prevent it from escalating,” Maclou tells the webcast, noting that left unchecked, bullying can lead to long-term debilitation and even suicide.
Contrary to many media reports, the amendments are about prevention – not damages or deadlines – a focus that’s “a lot narrower than many employers have been led to believe”, she says.
“The only time that financial penalties or the issue of monetary damages arises is if an employer fails to comply with an order made by the Commission as a result of having gone through the process.”
Further, “it’s important to note that the ’14 days’ [response timeframe] relates very specifically to the Commission commencing dealing with the application – it doesn’t have to have it all resolved within 14 days of it being received”, she says.
In fact, the 14-day timeframe for commencement is a good thing for employers, because it assures them that the Commission will start looking for ways to resolve the issue they are facing quickly.
“Prior to 1 January 2014, employers were faced with the unenviable task of receiving a complaint, then trying to determine who was appropriate within the organisation to deal with it,” Maclou tells the webcast.
“If there wasn’t anyone appropriate in the organisation who had enough impartiality [they might appoint] an external provider.
“There were often disputes between the employer and, say, a lawyer acting for the employee, as to whether that independent assessor or investigator was appropriate.
“Even after findings were returned there was much debate over whether those findings were appropriate or whether they carried authority, and there was no set guideline an employer could follow other than setting up its own process and procedure and following that consistently.”
The FWC now has “broad powers” that include convening conciliations and making various orders, Maclou adds.
“However, the Commission can only make an order in terms of the alleged bullying if it is satisfied that there is a risk of continued bullying by the same individual or the group, and such orders are to be directed at preventing future bullying of the same kind,” she says.
“So unlike an unlawful adverse action claim or an unfair dismissal claim… where a worker has ceased employment [or] is no longer engaged in that environment, the Commission cannot make the orders.”
Orders might include requiring individuals or a group to stop a certain behaviour, or asking the employer to monitor a situation, review certain policies and procedures, or provide information, support and training to employees, Maclou says.
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