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Muddy waters ahead with the commencement of the new anti-bullying laws

Bullying & HarassmentJanuary 31, 2014

Muddy waters ahead with the commencement of the new anti-bullying laws (Last Updated On: November 9, 2016)

The much anticipated new anti-bullying laws came into effect on 1 January 2014. Workers who believe they are being bullied can now apply to the Fair Work Commission (the Commission) to stop the bullying.

This right is not limited to employees, but extends to contractors, labour hire personnel, apprentices, trainees, work experience students and volunteers.

So what constitutes bullying?

Bullying occurs when:

• a worker is subject to repeated and unreasonable behaviour by a person or group of persons at work; and

• the behaviour creates a risk to health and safety.
If there is a risk the bullying will continue, the Commission can make any order it feels is necessary to prevent the worker from being bullied. This might include an order requiring the individuals concerned to stop the bullying or a review of the employer’s anti-bullying policy.

Although the Commission cannot impose fines, penalties or compensation, an adverse finding would certainly be held against the employer in any subsequent Workplace Health and Safety, anti-discrimination or workers compensation proceedings.

What this means in reality?

Although employers have always had an obligation to provide a workplace free from bullying under WHS legislation, the new laws are designed to give workers a direct remedy and ensure quick intervention. Employers are likely to find greater scrutiny around their disciplinary and performance management processes, with workers who feel unfairly targeted lodging claims with the Commission.
However, the new laws do not prevent employers from legitimately managing their staff. Employers are entitled to take action which is “reasonable management action, carried out in a reasonable manner”.

Reasonable management action carried out in a reasonable manner

Management action may include:

• setting performance goals and conducting performance appraisals; changing hours of work; performance management plans;

• or investigating and disciplining a worker for misconduct.

However, management action will only be legitimate if it is:

• reasonable for the management action to be taken; and

• carried out in a reasonable manner.
Therefore, a justified action could still be unreasonable and breach the new laws if it is conducted inappropriately. For example, critiscising performance may be appropriate but not when it is conducted in front of other colleagues.

Ultimately, what is reasonable will depend on the individual circumstances, making it difficult for employers to know what they should and should not do.

Practical tips

Managers should avoid taking irrational action (for example, raising performance issues for inconsequential mistakes) and should consider the worker’s emotional health and whether they might feel victimised or humiliated before taking any action.

Employers should take steps to minimise the risk of claims and ensure they can defend their actions by:

• implementing strict anti-bullying policies and procedures;
• conducting annual anti-bullying and diversity training;
• implementing a grievance handling process;
• encouraging open communication and reporting in the workplace;
• conducting regular performance appraisals;
• establishing clear disciplinary and performance management policies and ensuring managers follow procedures consistently; and
• maintaining a written record of all disciplinary and performance management processes and providing written reasons for the action.
Employsure can help you implement the measures above. We will also provide you with ongoing professional advice to help you navigate through any instances of bullying in the workplace and any workplace bullying claims.

By Caroline Pellow – Employment Relations Claims Advisor

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