Bullying and the Fair Work Commission – a year in review
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Russell Kennedy Lawyers discuss: - How does the anti-bullying jurisdiction work? - How is it working in practice? - What are the big issues? - What can we learn about dealing with internal bullying complaints? Originally presented on 27 November 2014 by Anthony Massaro and Ben Tallboys.
![Bullying and the Fair Work
Commission – a year in review
27 November 2014
Anthony Massaro, Principal
Ben Tallboys, Senior Associate
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Bullying and the Fair Work Commission – a year in review
- 1. Bullying and the Fair Work Commission – a year in review 27 November 2014 Anthony Massaro, Principal Ben Tallboys, Senior Associate [Insert image here to match your presentation – contact Meg in BD to obtain images] ##Insert FileSite Doc ID [INSERT IMAGE HERE TO MATCH YOUR PRESENTATION – CONTACT MEG IN BD TO OBTAIN IMAGES]
- 2. Purpose of today > How does the anti-bullying jurisdiction work? > How is it working in practice? > What are the big issues? > What can we learn about dealing with internal bullying complaints? > Q & A 2
- 3. The process
- 4. The anti-bullying process > Application for an anti-bullying order > Must name applicant, respondent(s) and employer > Must identify bullying conduct > Response must be filed within seven days > Commission must start to deal with matter within 14 days 4
- 5. The anti-bullying process > Options: > Mediation > Preliminary hearing (threshold issues) > Final hearing > Decision/Outcome > Application dismissed OR > Orders made to stop bullying 5
- 6. What orders can be made? > Anything BUT compensation > Orders on an individual to stop the specified bullying behaviour > Orders on an employer to do something to stop the behaviour > Failure to comply with an order can attract penalties 6
- 7. What orders can be made against an employer? > Change the workplace > Regularly monitor certain worker’s behaviour, health or safety > Develop a bullying policy > Comply with a bullying policy > Provide additional support and training to workers 7
- 8. Procedural issues > Lawyers usually granted permission to appear > Workers’ names typically de-identified > Employer’s names often disclosed (but sometimes not) > Generally, costs cannot be awarded 8
- 9. Observations
- 10. What is the employer’s role? > Employer tends to assume the role of the “defendant” > But the respondent is actually the individual or group of individuals doing the “bullying” > Employer is interested/affected party > Concerns its workers and workplace > Findings/outcome may affect its reputation 10
- 11. Why would the employer take an active role? > Contest legal issue with claim > Defend management decisions > Protect reputation > Defend spurious claims on behalf of respondent worker(s) > Have a say in any ultimate orders 11
- 12. What floodgates? > 343 applications > 93 withdrawn shortly after filing > 63 settled during proceedings > 20 withdrawn after conference/hearing > 13 dismissed due to application not being pursued 12
- 13. What floodgates? > 270+ conferences/hearings > 37 procedural decisions > 13 jurisdictional decisions > 4 substantive decisions > 2 consent orders > 1 appeal > 0 judgments for the Applicant 13
- 14. Key themes > Fewer claims than expected > Commission focused on prevention > Most claims are obvious > Obvious claims resolve very fast > Commission is still finding its feet regarding its role and powers > Lots of technical arguments > Lots of lawyers involved 14
- 15. Key themes > Cases are going to hearing if: > Commission’s jurisdiction challenged > Management issues involved > The alleged bullying is varied and complex > Cases are therefore complex, time-consuming and costly > Commission seems reluctant to find bullying has occurred (so far) 15
- 16. Oh, those floodgates! > More and more applications are coming > Bullying will be established eventually > Applications are now being used as a negotiating tactic (sword) > Applications are being used to generate a general protections claim for victimisation (shield) 16
- 17. The law
- 18. When will FWC make orders? The applicant must prove that: > they are a worker; AND > they are at work in a constitutionally-covered business; AND > they have been bullied at work; AND > there is a likelihood that they will be bullied at work in the future 18
- 19. Likelihood of future bullying > What happens if the Applicant or the Respondent resigns or is dismissed? > Same result: > No future risk of bullying > Application must be dismissed > What if the conduct precedes 1 January 2014? 19
- 20. “Constitutionally-covered business” 20 Red Cross Blood Service Yes MFB Yes Shire of Cue No Shire of Dalwallinu Yes Etheridge Shire Council No CFA Yes State Government Department No Peninsula Support Services No
- 21. “Bullied at work” > Repeated unreasonable behaviour > By an individual or group of individuals > Poses a risk to health and safety > That is not reasonable management action > Can include conduct which occurred before 1 January 2014 21
- 22. What is “at work”? > In the workplace > Working from another premises? > Working from home? > On work trips or at functions? > At drinks after work? > What about through social media? > What about bullying by unions? 22
- 23. What is “reasonable management action”? > Actions taken in relation to employment > eg. performance management, disciplinary action, restructures > Actions must be lawful and rational > Need not be perfect > Lower standard than unfair dismissal, WorkCover systems 23
- 24. What can we learn?
- 25. What can we learn? > Having bullying policies is crucial > Managers need to identify behavioural issues and stop them immediately > Managers need to act on complaints > immediately > in accordance with policies > Everything needs to be documented! 25
- 26. Q&A
Editor's Notes
- Welcome to our final session for the year. I know it is getting harder to make time for things as we approach Christmas, so we appreciate the effort you have all made to be here today. As quick housekeeping matter, Anthony and I would be particularly grateful if you would take the time in the next few days to complete the online survey that will be emailed to you. Now, I think this is a good topic to cap off the year for a few reasons. The Commissioner’s new anti-bullying powers started on 1 January and so it makes sense to review those powers at the end of the year. It also allows us to build on Anthony’s session last month about how employers should go about acting on workplace complaints by reviewing how the Commission is attempting to approach those complaints, and about how it is viewing employers’ attempts at doing the same. Helpfully, then, there have not been as many claims as expected, only about 300, and all of the decisions so far are in the favour of the employers and management. So those of us were afraid on 1 January that the language of the Act was weighted too far in favour of the individual can rest easy for now. Employers are not using the jurisdiction to avoid every management decision in the workplace. And the Commission is not looking for flaws in every management process, like it does when reviewing unfair dismissal claims, and labelling those flaws “bullying”.
- So with that, what are we going to be talking about today? I will start us off by just quickly recapping the way the anti-bullying jurisdiction process works. I will then speak broadly about trends we are seeing and share some of our own personal experiences of appearing before Commission or advising clients who have done the same. The workplace relations team has had a few matters in the jurisdiction now, including a few simple matters that have resolved almost immediately, a complex hearing about bullying involving a contractor, a few jurisdictional arguments and at this stage the only appeal in the jurisdiction. And Anthony would no doubt tell me that I am being too modest if I did not mention that my client won that appeal and all I had to do in the appeal was announce my appearance to the Full Bench. But I will speak more about that later. After that, Anthony will have the difficult task of summarising of what bullying actually means in the Commission so that he can then share his thoughts on what you as business owners, managers and employees can be doing to ideally avoid such claims being made against you, and if not then how you can at least position yourself to defeat such claims.
- So with that, the process for anti-bullying claims will be familiar to those of you who have dealt with unfair dismissal claims before.
- There are no express time limits for making an anti-bullying application subject to a caveat Anthony will raise in the second half. The application itself must identify the person being bullied, the person or persons doing the bullying, the relevant employer or employers, the conduct said to make up the bullying, and how the bullying is said to be ongoing. The Commission will then give a copy of that complaint to the respondents said to be bullying the applicant, and also to the relevant employer. The employer and respondents will then each have seven days to file their own individual or collective responses to the application. The Commission will also within 14 days of receiving the application start what it calls the triage process, which basically means trying to resolve the matter by telephone if the application appears urgent, by arranging a mediation conference if it is less urgent or by arranging a preliminary hearing if someone is asserting that the Commission does not have the power to deal with the application (again, Anthony will talk about these issues later on).
- However, if the matter is not withdrawn or otherwise resolved then the application will proceed to a final hearing just like any unfair dismissal claim. There will then be a decision where either the application is dismissed because the Commission is not satisfied it should make an order to stop bullying, or it will make such an order.
- Now the Commission’s powers to stop bullying are vast. It can do anything it considers necessary to stop a person who is bullied at work from being bullied in the future. It can order someone, basically anyone, to do something. Or it can order them to not do something. But its powers are not unlimited as it cannot award an application for compensation, and this has probably been the saving grace of the system from an employer’s perspective. Because if there is no money involved, an employee has to be pretty determined to pursue an application all the way to a final hearing despite the time, cost and stress that will cause (particularly if lawyers are involved). And of course, if an order is made and not complied with, that can lead to penalties of up to $51,000 for a corporation and $11,000 for an individual.
- So from the employer’s perspective, what are the sorts of orders that may affect an employer? If bullying is found, it might be that the Commission will require changes to the employer’s workplace. So for example, employees may potentially be required to not communicate with each other or to change their working hours so that they do not interact with each other. If bullying happened and the Commission is dissatisfied with the employer’s approach to handling bullying internally, it may also order that an employer develop or at least comply with its bullying policy, or that it provide additional support and training to workers for managing bullying in the workplace.
- Now there are some procedural quirks of the jurisdiction, although most of these are again similar to the unfair dismissal regime. Lawyers still need permission to appear in the Commission. The general approach so far seems to be a reluctance by the Commission to allow lawyers to advocate at mediation conferences, but to allow lawyers for respondents and employers to appear even against unrepresented applicants where the Commission’s jurisdiction is being challenged or at a final hearing. So to give an example, Libby Pallot who leads the workplace relations team recently had a matter where the bullying really boiled down to personality issues between two employees with the same status. The Commission viewed the matter as simple, and did not allow Libby to appear at a conciliation conference, and the matter resolved shortly thereafter. On the other hand, I had a complicated matter where I was defending a Board Chair, CEO and Director of Nursing, and indirectly the employer, against a series of bullying allegations made by a contractor dating back four years. There were also a series of jurisdictional questions relating to the matter. I was allowed to speak at the conciliation conference but not formally granted permission to appear. I was then granted that permission despite the objections of the unrepresented contractor due to the complexity of the matter, and I suspect the Commission’s desire for some assistance in controlling the proceeding because the contractor is really a quite difficult individual. In fact, he then appealed the decision allowing me to appear to the Full Bench. I then had to technically ask the Full Bench for permission to appear in an appeal against a decision granting me permission to appear. I ultimately didn’t get that permission because the Bench decided to dismiss the appeal in my client’s favour without even bothering to hear from me. So I suppose I will still take that as a win. Now, obviously the sorts of claims that can be made in these matters can be quite sensitive and embarassing for the parties concerned. The Commission makes a habit of not identifying the parties when listing matters for hearing, but the starting principle is that all Commission decisions are public unless an order is made to the contrary. This has led to inconsistency between different members of the Commission with some members automatically de-identifying all of the parties decision, or at least the employee, in a decision automatically, while others have refused to do so even when a formal application has been made. So in my matter, Deputy President Kovacic and the Full Bench de-identified the parties in the preliminary decisions, and then on the first day of the final hearing agreed to my application that this approach remain in place for the final decision. Whereas in other matters, members of the Commission have expressly refused to do exactly the same thing as was to the Maritime Union’s recent dismay. And finally, costs are generally not recoverable just like in unfair dismissal claims. This obviously encourages the parties to settle the matter, especially the employee who can both not get costs but also not get compensation.
- I mentioned earlier that there were not as many claims as expected, and so here are the stats from the first six months of the new regime. There have been more than 300 applications, but about a third of them are withdrawn without any compromise on the employer’s part, either because the applicant has realised the claim has no merit or perhaps because they have achieved whatever collateral benefit they were seeking. And then obviously half of those applications are either withdrawn or settled without a final hearing being necessary.
- Of course, by now there has been more than 300 conferences and hearings, and so what this means is that most claims that are not resolved immediately are requiring multiple days before the Commission to conclude. Despite, this, there have only been nearly 60 decisions by the Commission and 50 of these have concerned either procedural points, such as whether lawyers can appear, or jurisdictional issues, such as whether an employer is covered by the regime. There have only been four substantive judgements, and none of them have been in the employee’s favour. There were two consent orders, made by the Commission with the parties’ agreement after a conference, but these were both orders relating to what was clearly an obvious personality clash between two individuals who agreed to formal orders being in place to ensure they kept out of each other’s way at work. And of course, there was one appeal. Mine. Just in case I forgot to mention it.
- So back down
- Employer and employee cannot afford to back down The few big decisions all involve management issues
- I’m going to be talking about the circumstances in which FWC might actually make a bullying order. As Ben says, this hasn’t actually happened yet. Test: Worker – easy – a person carrying out work in any capacity for another person. employees, contractors, subcontractors, employees of contractors, volunteers, apprentices and work experience students. Const, bullied, future bullying I’m going to deal with the last of these first, because it is a critical threshold issue which is tripping as lot of applicants up.
- So, there has some current or recent conduct If not, then the risk is gone. This is just common sense. Commission will not make bullying orders in those circumstances Ben had a claim against one his clients dismissed on this ground a couple of weeks ago. 2 days into a hearing, lots of documents exchanged, etc. Note: termination of employment is not a fix all solution – adverse action rules still apply. A better solution - Internal dispute resolution If the employer has taken steps to resolve the complaint internally, it may be hard for the applicant to prove that there is any likelihood of future bullying. I have had instances where after an investigation the respondent offers to mediate and the applicant refuses; or the respondent apologies and agrees that their behaviour was inappropriate, but the applicant does not accept the apology I expect that in those circumstances, Commission would find no future risk. How does past conduct play into this? This is was argued in March (Ms Kathleen McInnes & Peninsula Support Services). All of the allegations related to conduct occurring before the commencement of the legislation Employer argued that conduct occurring before the commencement could not be taken into consideration. Commission held that it could. However, if there is no current conduct, or recent conduct, then it is hard for the Commission to find that there is a likelihood of future bullying.
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- So assuming that you have a worker in a constitutionally covered business, and they are still there, and the conduct that they allege is vaguely current… What is bullying at work? Basically the same old definition of what constitutes bullying. Repeated - Commission is leaning towards “persistent” rather than simply repeated. There needs to be a pattern of conduct, likelihood that it is ongoing. Two real questions arise from this: What is “at work” What is “reasonable management action?”
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- 23
- So far: no clear statement from the Commission as to what you can do to avoid being accused of bullying Commission appears unwilling to interfere with performance management and disciplinary action If the Commission gets the sense that the employer is overall trying to do the right thing, mistakes will be overlooked. If you can convince the Commission that there is no future risk, then the past doesn’t matter. So: policies etc.
- A: Has anyone had experience of a bullying complaint before the Commission? B: Is anyone involved in a process that is heading in that direction? A: Ben, what do you see as the critical issues for the system over the next year B: contractor issue “At work” question At some point there will be a decision in favour of an applicant, and it will be interesting to see what orders the Commission makes in a contested environment Also interesting to see how the plaintiff sector reacts