It used to be the case that there was no national legislation prohibiting workplace bullying. This meant that a worker who wanted to pursue a bullying claim had to rely on general laws such as workers’ compensation laws, anti-discrimination laws and common law claims.
This changed on 1 January 2014 when new workplace bullying laws were introduced as part of the Fair Work Act 2009 (Cth), making bullying conduct unlawful with a right to redress workplace bullying through the Fair Work Commission.
What is workplace bullying?
Under the Fair Work Act bullying occurs when a person or a group of people repeatedly behave unreasonably towards a worker and that behaviour creates a risk to health and safety.
Examples of bullying behaviour include:
- unwarranted blame or criticism of the worker;
- teasing, insults or lies about the worker;
- blaming the worker for something without proof;
- intentional exclusion or isolation of the worker;
- yelling or harsh, inappropriate language directed at the worker;
- making comments that are designed to embarrass, humiliate or degrade the worker in front of others;
- unreasonable work demands, such as setting unrealistic deadlines for the worker;
- sabotaging or taking credit for the worker’s work.
What is not bullying?
A manager can make decisions about poor performance, take disciplinary action, and direct and control the way work is carried out. Reasonable management action that is carried out in a reasonable way is not bullying.
Management action that is not carried out in a reasonable way may be considered bullying.
Who can make a claim?
The Fair Work Commission can deal with a bullying claim by any person that is covered by the federal system, which generally includes those workers working in a ‘constitutionally covered business’ (for example, a proprietary limited company or an incorporated association), or in a Commonwealth organisation or authority. Many medical, dental and healthcare practices are corporate entities which will fall within this jurisdiction.
Workers that can raise a claim include employees, contractors or subcontractors, outworkers, apprentices or trainees, students gaining work experience and volunteers. It would definitely include practice managers, receptionists, practice nurses and dental hygienists.
Potential outcomes
The need for prompt action in bullying matters is reflected in the requirement that the Fair Work Commission must start to deal with a worker’s application within 14 days after the application is made. The worker does not need to utilise any available internal complaint resolution procedure before applying to the Commission, although the Commission is required to take such issues into account before making anti-bullying orders.
The Fair Work Commission cannot order compensation for the worker or any reinstatement by way of remedy, but has a broad discretion to make any other order to deal with and/or prevent the worker from being bullied. Some examples of such orders may include that:
- the conduct cease, or that workers are separated and/or monitored;
- the practice reviews or establishes of policies for the prevention of bullying;
- the practice adheres to any relevant policies or procedures;
- training be provided to workers;
- the practice conducts an investigation.
If the Fair Work Commission makes an order and the employer does not comply with that order, the worker could apply to the Federal Court or Federal Circuit Court to enforce the order. If the Federal Court or Federal Circuit Court determines that the employer has contravened the Fair Work Commission’s order it can impose a significant financial penalty on the employer.
Minimising the risk
Bullying can have significant implications for a medical, dental or healthcare practice, including financial (such as loss of morale and productivity, sick/stress leave, staff turnover costs, costs of defending claims in the Fair Work Commission), and reputation loss.
Given the costs, prevention of bullying claims should be a goal for employers. There are a host of proactive and preventative measures which can be taken such as:
- having clear and up-to-date workplace bullying policies and procedures in operation which are applied consistently;
- providing training to all staff in relation to appropriate workplace conduct, harassment and bullying, as well as in relation to the practice’s bullying policies and procedures;
- taking reports of bullying seriously and responding quickly and appropriately to prevent or stop alleged bullying;
- in order to convince the Fair Work Commission that a worker had ‘reasonable management action carried out in a reasonable way’, providing training to managers on how to handle underperformance issues (including how to ensure that procedural fairness is afforded to the worker when raising underperformance issues).
For further information on preventing and responding to workplace bullying, harassment and discrimination matters, contact us.
The content of this article is intended to provide a general overview and guide to the subject matter. Specialist advice should be sought about your specific circumstances.
