Why the lack of anti-bullying orders thus far?
It has been just over two years since the new anti-bullying laws enacted under the Fair Work Act 2009 (Cth) came into force however to date, the regime has not resulted in the flood of complaints originally anticipated. With only a handful of anti-bullying orders being made thus far, this begs the question as to what is responsible for rendering the new regime such a toothless tiger.
In the view of many, the lack of orders being made can be blamed on the restrictive nature of the legislation itself. Most notably, the regime does not allow for financial compensation to be awarded, instead favouring the provision of orders that involve processes being implemented to prevent the conduct occurring. Not surprisingly, the reward of simply having a bully be told to stop acting as they have has proven hardly enough of an incentive for many victims to put themselves through the time, stress and burden of initiating legal action.
Similarly, the legislation requires that an ongoing relationship exist between the applicant and alleged bully, so as to create the risk that the bullying will continue. This means the new regime does not cover situations such as where a victim of bullying feels compelled to leave the workplace to avoid the conduct in question.
Does this mean bullying in the workplace can be ignored?
Workers who have been bullied in the workplace may still seek monetary penalties, compensation or reinstatement in a number of ways, including through the following claims:
- Adverse action;
- Unfair dismissal;
- Work Health and Safety; and/or
- Common law breach of contract and negligence.
Importantly to note, the above-mentioned claims may also lead to penalties being awarded against employers for failing to prevent the conduct occurring. To provide just one example, a breach of a primary duty of care by a business to ensure the health and safety of its workers (under the Work Health and Safety Act 2011 (Cth)), may give rise to a maximum penalty of up to $3mil for a corporation, or $600,000 and/or 5 years imprisonment for individuals.
Therefore, employers must remain vigilant to stamp out bullying in the workplace and ensure they have adequate systems in place to deal with complaints should they arise.
What policies and procedures should my company have in place?
To prevent bullying in the workplace and to protect themselves from financial penalty, employers must ensure that at an absolute minimum, the following documents are in place:
- Workplace Anti-Bullying and Grievance Handling Policy
- Workplace Anti-Bullying Reporting Guidelines
- Workplace Anti-Bullying and Work Harmonisation Training Policy
Should you require assistance developing any of the above-mentioned documents, or require further information on anything you have read, we suggesting contacting us urgently on (03) 6221 4800.