As of 1 January 2014, there are specific provisions in place in the Fair Work Act for a worker who has been bullied at work to apply to the Fair Work Commission (the FWC) for an order to stop the bullying. This article highlights some very important points to take from these new provisions.
The new Fair Work Act bullying provisions
Prior to the new Fair Work Act bullying provisions (which commenced on 1 Jan 2014), victims of bullying have had relied upon causes of action that are compensatory in nature – for example, workcover claims, breaches of occupational health and safety legislation, discrimination claims and even the criminal process.
The aim of the new provisions is to stop the bullying at an early stage and thus, importantly, avoid the damage being caused by bullying in the first place.
It is however important that you are aware that these new bullying provisions do not replace any of the existing causes of action – if damage is suffered by a bullied worker, the victim can still seek compensation for that damage just as before. Obviously bearing in mind that such claims can be notoriously difficult to litigate – not only does one need to suffer from a serious and permanent psychiatric injury (i.e. in VIC 30% WPI), but one has also to prove that the employer was negligent (i.e. see The chameleon-like nature of reasonableness in the context of stress claims).
How do the new Fair Work Act bullying provisions work?
As of 1 Jan 2014, workers who reasonably believe that they have been bullied at work can apply to the FWC for an order to stop bullying. This means there is now an easier accessible process for bullied workers to seek an order from the FWC that the bullying behaviour stop.
The provisions apply to “workers”, which includes employees, contractors, sub-contractors, outworkers, apprentices, trainees, students gaining work experience and some volunteers-but excludes: state or local government employees, private sector workers employed by sole trader, partnership or one of the many workers in the charity and community sector!
Also, the person who applies to FWC must be “at work” for an employer who is covered by the Fair Work Act (being the vast majority of employers). However, there are no time limits for making an application – but the worker must still be working at the place or for the business where the bullying took place.
If an application is made by a worker to the FWC, the FWC must start to deal with that application within 14 days. This however does not mean that the application itself must be resolved within this time but merely that the FWC must start to inform itself of the (bullying) matter within that period.
If the FWC is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work, it may make any order it considers appropriate to prevent the worker from being bullied at work. However FWC can not order any form of compensation.
Only if the person (i.e.bully/employer) to whom such a FWC order applies contravenes a term of that order, the person who has contravened it may be subject to a penalty and also liable to pay compensation to the worker for loss suffered (including for ‘hurt and humiliation’).
Also, how a bullied worker’s case is dealt with by the FWC depends a lot on the individuals involved and the particular FWC representative who deals with the complaint.
Important key fact re the new FW bullying provisons
- In order for it to be qualified as bullying, it must be “repeated” – one incident is not enough
- The focus of the FWC is not on compensating the worker for past bullying but stopping them being bullied in the future. Also, regardless of the seriousness of the bullying, if there is no risk of it happening again in the future (for example, because the bully has since left employment), no order will be made
- The FWC cannot order payment of a pecuniary amount, aka compensation – we believe this was set up this way to avoid bogus claims being made in an attempt to obtain a payout…. After all , remember that all injured workers are seen as all fraudsters
- It’s also important you realise that there is no right to appeal from an order.
- The orders can be directed to the employer (business /company) itself, but can also be directed at individual employees (at any level) or a group of employees.