Trickle of bullying cases under new Fair Work regime, but employers must still take care

Despite the small number of cases considered by the Fair Work Commission’s new anti-bullying jurisdiction, employers still need to be vigilant about creating fair and constructive workplace cultures that discourage bullying.

In the first six months of the Fair Work Commission’s new anti-bullying jurisdiction, only 20 applications progressed to a decision, with just one upheld.

The 2013-14 report reveals the tribunal received more than 100,000 unique website hits relating to anti-bullying, but the number of applications was a trickle rather than the flood feared by employers.
It says the FWC dealt with more than 3500 telephone inquiries, processed 343 applications and conducted 270 anti-bullying conferences and hearings in the first six months of its existence.

Most of the 197 finalised applications were resolved before a decision needed to be made: 59 applications withdrawn early in case management, 34 withdrawn before the start of proceedings, 63 resolved during proceedings and 20 withdrawn after a conference or a pre-hearing consultation.

The jurisdiction aims to prevent further bullying at work and confers no power to award compensation or declare parties to be guilty.

“We’re applying different concepts here, because this is all about preventive maintenance of employment and personal relationships—it is not about picking up the pieces after the event. So in that context it’s a different skill set.” said the head of the anti-bullying panel, Commissioner Peter Hampton.

FWC general manager Bernadette O’Neill said “it is still too early in the life of the jurisdiction for us to come to firm conclusions about the future workloads we face in this area.”

Some believe that referrals to the FWC will increase as potential complainants become increasingly aware of the FWC option. Other anti-bullying avenues are also still available to employees, including State occupational health and safety legislation, WorkCover compensation (including stress leave), common law remedies and, in extreme cases, the criminal law, such as Brodie’s Law in Victoria.
Non-legal cultural risks include stress related illnesses, reduced work performance and productivity, high staff turnover and associated costs, poor morale, increased absenteeism, disruption and costs during investigations and the brand risk associated with the public airing of bullying claims.

Overall, prevention is the best cure.

iHR believes creating a constructive, safe and lawful workplace culture that will reduce the risk of bullying. This includes engaging workplace culture experts such as iHR early in the peace rather than waiting for a formal bullying complaint to progress to an external body such as the FWC.

iHR specialise in anti-bullying, EEO, harassment and discrimination training, independent workplace investigations, workplace mediation and tailored HR policies and procedures.