Australia: Bullying claims start to flow

• The Fair Work Commission’s (FWC) new bullying jurisdiction commenced on 1 January 2014.
• The FWC recently announced that 44 complaints have been received in the first month of operation of the new jurisdiction.
• Meanwhile, in Victoria, another employee has received a significant damages award as a result of bullying.
• It is vital for employers to have in place policies, procedures and training to deter bullying and to appropriately address and resolve complaints as they arise. 
• Managers at all levels also need to be conscious that a higher level of scrutiny is likely to be brought to bear on day to day workplace interactions, including performance management, due to the operation of the new bullying jurisdiction.

The Fair Work Act’s anti-bullying laws commenced on 1 January 2014. Workers who reasonably believe that they have been bullied at work can now apply to the FWC for an order to stop bullying. This means there is now an easily accessible process for workers who believe that they have been bullied to seek an order from the FWC that the bullying behaviour stop.

In the lead-up to 1 January 2014, there was much discussion about the number of claims which might be brought in the new bullying jurisdiction.

Last week, FWC President Justice Ross reported that 44 claims have been received in the first month of operation of the new laws.

There were, however, over 28,000 unique hits on bullying information on the FWC’s website during this period.

We anticipate that the number of complaints will only increase.

In addition, a recent Victorian decision¹ is a stark reminder that employers need to be ready to respond to bullying allegations. It also provides some further guidance on what may constitute bullying behaviour.

Here, in a negligence claim alleging bullying, the County Court awarded $313,575 to a former employee of the employer who had developed a psychiatric condition as a result of repeated conduct by her manager. Ms Dawson made claims in respect of the manager’s general accusatory and intimidatory conduct as well as specific incidents where she was singled out for unreasonable treatment. This included placing Ms Dawson on a performance improvement plan without informing her and without just cause, imposing a requirement that she notify her manager before going on a lunch break and removing her from an interviewing panel without just reason. Ms Dawson also alleged negligence by management in failing to address her complaint and manage the conduct.

Justice Bourke was satisfied that the manager engaged in bullying behaviour and found that management was negligent in failing to take appropriate steps in relation to the allegations, despite being aware of the claims.

The decision, and the recent claims statistics, are a reminder of the importance of employers taking appropriate steps to deter bullying and address and resolve complaints as soon as they arise to minimise the likelihood of a successful claim - either through the courts, the FWC or via a workplace health and safety regulator.

Training programs

Herbert Smith Freehills has announced details of its highly successful Professional Development Program Training for 2014.

The first program, Employment Law Essentials – From Hiring To Firing will commence on 6 March 201 in Melbourne and Sydney.

Responding to Bullying Complaints in the Fair Work Commission will run on 30 April 2014 in Melbourne, Sydney, Brisbane and Perth.

Herbert Smith Freehills also develops and delivers customised programs to build capability for your in-house human resources and management teams.

For further information about this year’s programs, to book or enquire about a tailored training program for your organisation.²

This article was written by Lisa Croxford, Special Counsel, Sara Summerbell, Senior Associate and Kate Joffe, Solicitor, Melbourne.

Endnotes

1. Dawson v Department of Justice [2013] VCC 2000.
2. EPI Programs 2014.

More information

For information regarding possible implications for your business, contact Lisa Croxford.