Since 1 January 2014 the Fair Work Commission (FWC) has administered a new “one stop shop” bullying jurisdiction that can make orders to stop or prevent bullying in the workplace. Previously bullying type conduct was addressed under a patchwork of different laws including the law of negligence, breach of contract and workplace health and safety legislation.
The new laws will further shape the modern workplace and have the potential for both positive and negative consequences for employers and workers.
In this context, we bring you the seven top tips for managing bullying complaints:
Tip one: Manage investigations proactively
The FWC will have an oversight role which allows it to make a broad range of orders. When deciding on orders, the FWC must take into account outcomes arising from an (employer initiated) investigation and other procedures available to the worker to resolve the dispute. Timely, well-run and thorough employer investigations (with well-reasoned findings) and a sound process for taking any necessary follow-up action will indicate to the FWC that the bullying is being dealt with and that it doesn’t need to step in. Have these processes in place ready to deal with complaints as they arise.
Tip two: Problem solve solutions and propose them first
Where a bullying claim has merit, the FWC can make a number of orders including that the bullying stop and, potentially, that particular workers be moved within the workplace or reporting lines changed. Externally imposed solutions will often have inconvenient or unpredictable implications for employers. Employers proposing workable solutions to claimants will have an advantage when the matter comes before the FWC, as the employer will often be in a unique position to demonstrate the overall impact on the organisation of the solution that has been proposed and why the solution is appropriate and balances the interests of all parties.
Tip three: Decide the risk profile on legal professional privilege and self-incrimination at the front end
The FWC can compel the attendance of witnesses and require the production of documents. Employers will have to make a quick and long term decision about whether to claim legal professional privilege over particular documents (whether it be advice privilege or litigation privilege) and how to protect the legal rights of managers and other workers who might give evidence or produce information that indicates they may have committed a civil or criminal offence. A number of formal steps need to be taken to assert these legal rights. These issues should be considered at the front end, with some allowance given for the fact that an employer might need to conduct an investigation before it knows precisely what has happened. Settle on an approach and consider including reference to it in the organisation’s investigation policy and process (so that your employees are aware of it).
Tip four: Consider situations holistically rather than just defending individual claims
One set of facts will often generate a number or litigious options for a worker. For example, harassing or bullying behaviour could allow a worker to sue under the bullying or general protections provisions in the Fair Work Act, or at common law or under workplace health and safety legislation. Workers have some leverage to pick and choose their forum and to re-run similar claims in different places. Employers will need to consider the possibilities when dealing with complaints to prevent problems recurring. Strategise around the broader problem rather than taking a narrow view around an individual complaint to prevent recurring issues.
Tip five: Collect data and look out for trouble spots in your organisation
The new bullying laws provide a fresh reason to consider the data that is collected by human resources, legal and operational staff across your organisation. Taking a macro view of what is happening across an organisation is essential to ensuring inappropriate practices or behaviours do not fester or spread, and are dealt with in a consistent way. Employers could track data such as informal and formal complaints, legal claims (bullying, adverse action, etc) and other key indicators. These can then be compared year on year to indicate trends and point management to where it can most effectively direct resources.
Tip six: Think carefully about signing a cheque
The FWC cannot order compensation or order the payment of any money, and has indicated that it will actively discourage monetary settlements. Nevertheless, perhaps inevitably, employers will come under pressure from workers and plaintiff lawyers to pay money to settle claims, particularly outside the auspices of the FWC and given the time, expense and possible adverse publicity that may be involved in running a case. Employers will need to consider the broader implications of making these arrangements and take into account the broader deterrent effect of not paying to settle claims.
Tip seven: Educate workers, particularly managers, about appropriate workplace behaviour
While educating managers, supervisors and other workers about what is appropriate behaviour in the workplace will always be a “work in progress”, it is crucial to ensuring a proactive approach to minimising the risk of bullying claims. Whilst many employers and workers are aware that more extreme forms of workplace behaviour (initiation rites, sexual harassment or physical harm) are unacceptable, there can be less awareness around more subtle forms of workplace bullying such as ostracism or upwards bullying. Employers need to be diligent and take a long term approach to educating workers about what is acceptable both legally and under the organisation’s values and policies, and what isn’t. Education will include best practice approaches to performance appraisals, performance management, and other ongoing operational activities. Where carried out in a reasonable manner, these management activities will not constitute bullying.