1. Bullying – The Commission, the cases
and the considerations
Chris Turner
Director – Adecco:OHR
GM – Industrial and Gov’t Relations
2. Objectives – Bullying within the workplace
Policy and procedures
Maximising protection Maximising reliability
Handling a bullying matter
Internal vs external Cost of inaction
Key Cases
What is considered ‘at work’? Other recent cases
The role of the FWC
Jurisdiction ‘Stop bullying’ orders
4. Where can a bullied employee seek remedy?
Claims can
be
concurrent
FWC
HREOC
WH&S
Criminal
/Civil
5. 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
6. Some statistics from the FWC
Only 1 of the 60 decisions finalised resulted in an order being issued
7. 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
8. 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
9. 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
10. What will a ‘stop bullying order’ likely contain?
11. 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
12. More recent cases
Harpreet 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
13. Managing a bullying complaint
Is 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?
14. 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,
correspondence
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.
15. 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
16. 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
17. 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
19. 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
