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Bullying and the Fair Work

Commission – a year in review

Anthony Massaro, Principal

Ben Tallboys, Senior Associate

27 November 2014

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> How does the anti-bullying jurisdiction

work?

> How is it working in practice?

> What are the big issues?

> What can we learn about dealing with

internal bullying complaints?

> Q & A

Purpose of today

2

The process

> Application for an anti-bullying order

> Must name applicant, respondent(s)

and employer

> Must identify bullying conduct

> Response must be filed within seven

days

> Commission must start to deal with

matter within 14 days

The anti-bullying process

4

> Options:

> Mediation

> Preliminary hearing (threshold issues)

> Final hearing

> Decision/Outcome

> Application dismissed OR

> Orders made to stop bullying

The anti-bullying process

5

> Anything BUT compensation

> Orders on an individual to stop the

specified bullying behaviour

> Orders on an employer to do

something to stop the behaviour

> Failure to comply with an order can

attract penalties

What orders can be made?

6

> Change the workplace

> Regularly monitor certain worker’s

behaviour, health or safety

> Develop a bullying policy

> Comply with a bullying policy

> Provide additional support and training

to workers

What orders can be made

against an employer?

7

> Lawyers usually granted permission to

appear

> Workers’ names typically de-identified

> Employer’s names often disclosed (but

sometimes not)

> Generally, costs cannot be awarded

Procedural issues

8

Observations

> Employer tends to assume the role of

the “defendant”

> But the respondent is actually the

individual or group of individuals doing

the “bullying”

> Employer is interested/affected party

> Concerns its workers and workplace

> Findings/outcome may affect its

reputation

What is the employer’s role?

10

> Contest legal issue with claim

> Defend management decisions

> Protect reputation

> Defend spurious claims on behalf of

respondent worker(s)

> Have a say in any ultimate orders

Why would the employer take

an active role?

11

> 343 applications

> 93 withdrawn shortly after filing

> 63 settled during proceedings

> 20 withdrawn after conference/hearing

> 13 dismissed due to application not

being pursued

What floodgates?

12

> 270+ conferences/hearings

> 37 procedural decisions

> 13 jurisdictional decisions

> 4 substantive decisions

> 2 consent orders

> 1 appeal

> 0 judgments for the Applicant

What floodgates?

13

> Fewer claims than expected

> Commission focused on prevention

> Most claims are obvious

> Obvious claims resolve very fast

> Commission is still finding its feet

regarding its role and powers

> Lots of technical arguments

> Lots of lawyers involved

Key themes

14

> Cases are going to hearing if:

> Commission’s jurisdiction challenged

> Management issues involved

> The alleged bullying is varied and complex

> Cases are therefore complex, time-

consuming and costly

> Commission seems reluctant to find bullying

has occurred (so far)

Key themes

15

> More and more applications are

coming

> Bullying will be established eventually

> Applications are now being used as a

negotiating tactic (sword)

> Applications are being used to

generate a general protections claim

for victimisation (shield)

Oh, those floodgates!

16

The law

The applicant must prove that:

> they are a worker; AND

> they are at work in a constitutionally-

covered business; AND

> they have been bullied at work; AND

> there is a likelihood that they will be

bullied at work in the future

When will FWC make orders?

18

> What happens if the Applicant or the

Respondent resigns or is dismissed?

> Same result:

> No future risk of bullying

> Application must be dismissed

> What if the conduct precedes 1

January 2014?

Likelihood of future bullying

19

“Constitutionally-covered

business”

20

Red Cross Blood Service Yes

MFB Yes

Shire of Cue No

Shire of Dalwallinu Yes

Etheridge Shire Council No

CFA Yes

State Government Department No

Peninsula Support Services No

> Repeated unreasonable behaviour

> By an individual or group of individuals

> Poses a risk to health and safety

> That is not reasonable management

action

> Can include conduct which occurred

before 1 January 2014

“Bullied at work”

21

> In the workplace

> Working from another premises?

> Working from home?

> On work trips or at functions?

> At drinks after work?

> What about through social media?

> What about bullying by unions?

What is “at work”?

22

> Actions taken in relation to

employment

> eg. performance management,

disciplinary action, restructures

> Actions must be lawful and rational

> Need not be perfect

> Lower standard than unfair dismissal,

WorkCover systems

What is “reasonable

management action”?

23

What can we learn?

> Having bullying policies is crucial

> Managers need to identify behavioural

issues and stop them immediately

> Managers need to act on complaints

> immediately

> in accordance with policies

> Everything needs to be documented!

What can we learn?

25

Q&A