Anti-bullying laws: what has been their impact?

Analysis

Anti-bullying laws: what has been their impact?

Law firm Lander & Rogers has reviewed the impact of the anti-bullying laws introduced in 2014 and their effect on employers and the workplace.

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Many commentators predicted the anti-bullying provisions added to the Fair Work Act on 1 January 2014 would have a dramatic effect on employers. Some claimed the real scope of the provisions would not be known until the Fair Work Commission (FWC) had considered a number of test cases. So what do we now know about the provisions after 15 months of operation?

A seminar conducted by law firm Lander & Rogers in Sydney on 17 March 2015 provided a useful review of developments.

The presenters were Paul McKaysmith, senior associate, and Neil Napper, partner, from Lander & Rogers.

Fewer claims than predicted


Before the provisions commenced, the FWC predicted it would receive about 3500 applications per year, but in 2014 it received only just over 700. Of those, about 150 were resolved during proceedings, about 150 were withdrawn and only two resulted in orders issued by the FWC.

The FWC approach has put strong emphasis on conciliation and mediation when attempting to resolve disputes.

What is “unreasonable behaviour”?


The Act defines bullying as “repeated, unreasonable behaviour at work that creates a risk to the health and safety of a worker”. This has resulted in debate over what is “unreasonable”.

McKaysmith quoted from a judgment where an FWC vice-president compiled the following list of what the term could include: “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”. 

McKaysmith suggested that teasing, practical jokes and initiation ceremonies could be added to that list. He said there need only be evidence of a risk of harm to a worker occurring; proof of actual harm is not required.

What is “reasonable management action”?


“Reasonable management action” has been the main defence used by employers to justify their actions, but again there has been debate about what it can include.

McKaysmith commented that the FWC had taken “a commonsense approach” to its interpretation. The action must be lawful and not “irrational”, and the context in which it occurred will be considered. The latter can include the circumstances leading up to and during taking the action, and the consequences afterwards.

Perfection/best practice not required


Importantly, the action does not have to be “perfect” or “best practice”. Nor is it relevant that the action could have been taken in a way that was “more reasonable”. McKaysmith identified the following principles that have emerged from cases so far:
  • Reasonable management action can include issuing routine controls and directions, weekly reporting requirements, itemising matters on which a manager asked to be kept informed, investigating complaints made against employees, changing an employee’s responsibilities within the scope of their ability/skills, legitimately awarding or not awarding discretionary bonuses, and commenting on an employee’s failure to meet budget.
  • Placing an employee on a performance improvement program could be reasonable if problems with job performance had previously been identified and raised with the employee.
  • One-off brief angry manner and behaviour (such as a raised voice or saying “you’re wrong” when the latter was true) were not unreasonable.
  • Reasonable actions can still be carried out in ways that make them unreasonable, again depending on context.
  • Whether the action departed from management’s previous responses to similar issues may be unreasonable if it is harsher to the employee.
  • Unreasonable actions can include daily reporting requirements, intimidatory micromanagement, refusal to allow an employee to have a support person attend an interview, and making false or vexatious allegations against other employees.
  • There must be some line of cause-and-effect between the employee’s conduct or performance and the management action taken. The action must be reasonable and proportionate to the attributes of the employee involved, and commensurate with the nature of the perceived problem.

Some key principles from case law


McKaysmith identified the following significant conclusions from cases to date:
  • Conduct that occurred before 1 January 2014 may be relevant and can be considered by the FWC, eg if it is linked to other conduct occurring after that date.
  • The provisions no longer apply if the employee ceases working for the employer. An employee can still make an application during his/her term of notice of termination, but it would be unlikely to succeed because employment is about to end and the threat of future bullying is thus removed.
  • The FWC can order costs against a party.
  • Confidentiality of proceedings cannot be guaranteed, although many employees and employers have requested it. The mere prospect of embarrassment or distress to a party from being identified will not be enough to justify it.
Regarding workplace investigations by management, some employees will request a complaint be handled anonymously, otherwise they prefer not to pursue it. However, if a complaint looks to be valid and/or serious, management should not agree to anonymity and should investigate the matter, to avoid more serious consequences later.

Another recommendation while a complaint is pending is to separate the parties at the workplace, or at least minimise on-the-job contact between them.

What are the boundaries for "at work"?


As with many other employment issues, social media has blurred the boundaries of what amounts to conduct “at work”, which is a condition of making an anti-bullying application.

In one case, the FWC said that “at work” included “both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).”

There must be a “substantial connection” to work, but the alleged bully does not have to be “at work” at the relevant time.

The above case was discussed in detail in a previous article.

Further information


Further information about this seminar is available from Lander & Rogers Sydney Office.
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