Bullying – The Commission, the cases

and the considerations Chris Turner

Director – Adecco:OHRGM – Industrial and Gov’t Relations

Objectives – Bullying within the workplace

Policy and procedures

Maximising protection Maximising reliability

Handling a bullying matter Internal vs external Cost of inaction

Key CasesWhat is considered ‘at work’? Other recent cases

The role of the FWCJurisdiction ‘Stop bullying’ orders

Essential common understanding

The risk to health and safety is real‘Bullying’ is different for everyoneAnyone can be bullied

Where can a bullied employee seek remedy?

Claims can be

concurrent

FWC

HREOC

WH&S

Criminal/Civil

Reputational risk of allowing a bullying culture• Cases are increasingly being picked up by

social media and typically then the wider media

• Damages being sought are increasing significantly -$100,000’s is now common

• Courts and Tribunals are analysing the steps taken to eradicate bullying prior to issuing orders or making decisions

• FWC has ordered a bullying report be handed over for consideration

• Personal liability for decision makers increasing

• Café Vamp – significant penalties and changes to Crimes Act outlawing serious bullying• Australian Defence Force –

Defence Abuse Response Taskforce• St John Ambulance – Number of

suicides linked to organisation• Royal Australasian College of

Surgeons – Independent review found almost half of workers felt they’d experienced bullying, discrimination and/or sexual harassment

Some statistics from the FWC

Only 1 of the 60 decisions finalised resulted in an order being issued

More statistics from the FWC 2014/5

150,000 unique

website hits for bullying

6300 telephone enquiries

694 applications processed –

72% increase

800+ conferences

and hearings

46% resolved at

FWC conferences

What must an applicant establish for a FWC claim?• Evidence causal link between alleged

bullying and a risk to health and safety

• That the bullying occurred ‘at work’

• And there is a likelihood of the bullying continuing

• 48,242 eligibility quizzes were taken 2014/5

Common outcomes from the FWC conferences

• Undertakings about future behaviour• Clarification of roles, responsibilities

and reporting relationships• Employer to establish or review anti-

bullying policies• Provision of information, additional

support and training to workers• Worker to return to work on agreed

conditions • Agreed relocation of individual

named and/or the applicant worker

Reduced management

discretion

Positive obligation to

act

Must reasonably

accommodate

What will a ‘stop bullying order’ likely contain?

Significant case – DP World Goes outside the physical workplace

Does not have to occur during

work hours

Can include meal breaks

The Full Bench noted:

• ‘It seems to us that the concept of being ‘at work’ encompasses 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).’

• This matter also included allegations of bullying conduct in relation to posts on social media.

• The Full Bench rejected the MUA’s argument that workers would have to be ‘at work’ when offending social media posts were made for the conduct to fall within the bullying regime as the behaviour continued for as long as the comment remained online.

• The Full Bench also noted that alleged bullies need not be ‘at work’ at the time of their conduct.

Bowker et. al v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2014] FWCFB 9227 – Full Bench – 22 December 2014

More recent casesHarpreet Singh

[2015] FWC 5850 (28 August 2015)

Did not meet bullying

requirements

FWC advised to seek other remedies

McInnes [2014] FWCFB 1440 (6 March 2014)

Bullying prior to 1 Jan 2014 can be

considered

Laws operate prospectively – based on past

events

Keegan v Sussan Corporation (Aust.) Pty Ltd [2014] QSC

64

Failure to act on concerns, failure to

apply policy

Almost $240,000 in damages awarded to

Applicant

Managing a bullying complaintIs it possible to keep

employees safe?

Can the matter be investigated without

perceived bias?

Does the Company have a prescribed

bullying investigation process/framework?

• Priority must be on employee safety and how this can be achieved – this is stop light decision to be made prior to any next steps• How will confidentiality be

managed if requested?• Are reasonable accommodations

required immediately/short term?• Is there an anti-bullying policy that

a complaint triggers positive obligations or prescribed actions to commence?

Considerations for running an investigation

Identify key people –

parties involved,

witnesses, stakeholders

Identify risks to all parties –

safety, reputation, response

action

Design investigation –

questions, format,

timeframe, correspondenc

e

Cover confidentiality

including recording of

meetings, record keeping

Design decision making matrix – outcomes,

required changes,

implementation

Each case will be factually unique. Care must be taken to ensure appropriate level of experience, resources and probity is applied.

Internal versus external investigation

Independence

Nature of claims

Time and resources

Likelihood of litigation

• External assistance can help where there may be questions over impartiality or bias

• Where the severity or nature of the allegation warrants investigative subject matter expertise and/or a formal record with findings is required

• Where an organisation does not have the capacity or capability to run an investigation

Pro-active approach to anti-bullying

Early resolution

Provide anti-bullying training

for staff and managers

Establish workplace

behaviours and standards

Develop policies for anti-

bullying and reporting processes

Provide and encourage use of EAP services

Awareness & understanding

Reliability

Defend-ability

Values driven

Cost of inaction

Cultural Cost

• Higher turnover• Low satisfaction

levels• Lower

productivity• High

Absenteeism

Financial Cost

• Investigation • Worker’s

compensation• Litigation• Damages and

decisions• Recruitment

Lack of decision making Cost

• Orders requiring specific actions

• Inability to direct staff to work together

• Reduced discretion of directing duties

Anti-bullying Policy considerations

Workplace Safety

Formal Process

Informal Process

Compliance and

enforceability

Escalation and

intervention

Adherence and

application

Worth considering interaction with contracts, EBA’s, other policies (including ‘whistleblower’ policies and social media)

Final considerations

Keep up to date with decisions – it is still early in

the life of this legislation

Focus on consistency of decision making,

accountability and processes

Try to balance best practice, business practice, and value building policies

Ensure employees have access to support, training, and feedback mechanisms

Educate staff on Anti-bullying