By Calum Woods and Lindsay Carroll, NRA Legal
Since its introduction in 2013, the Fair Work Commission’s anti-bullying jurisdiction has attracted its fair share of commentary.
Of the 700 anti-bullying applications filed last year, a total of 53 proceeded to a formal hearing, and of those only 8 resulted in an order to stop bullying being issued.
This means that the success rate of an anti-bullying application was approximately 7 per cent at hearing, or 1 per cent as proportion of total applications.
Realistically speaking a great many matters resolve privately before reaching a formal hearing, however compared to other types of applications – for example, unfair dismissal which had a success rate of 20 per cent – anti-bullying has not kept pace.
One senior Member of the FWC recently criticised one employee’s use of the jurisdiction, stating that it was not a “shield” to stop disciplinary outcomes, and that it was not acceptable to “claim the disciplinary outcomes themselves constitute bullying.”
While this is good news for employers and people professionals who are constantly embattled to ensure that their procedures always meet the exception of “reasonable management action carried out in a reasonable manner” to defend such allegations, recent developments in work health and safety law mean that this is now only half the equation.
In what is believed to be an Australian first, an employee has now successfully argued that workplace bullying by his supervisors was a breach of work health and safety law, with one fined $12,000 personally.
Under the FWC’s anti-bullying jurisdiction there is no ability to order a payment of compensation or damages. This outcome, it seems, means that workplace bullying really does cost business.
The case involved an apprentice employed by a South Australian electrical company.
It was reported that in 2017, one of the apprentice’s supervisors squirted flammable liquid on him, and proceeded to light his boots and shirt on fire with a cigarette lighter. Meanwhile the second supervisor observed this occurring, and squirted more flammable liquid on the apprentice’s shirt.
It is understood that this was intended to be a prank.
The apprentice was fortunately uninjured.
The second supervisor was convicted by the South Australian Employment Court of “reckless indifference” on the basis of bullying behaviour, partly because he took no action to prevent this from occurring. The company is also being prosecuted in relation to the incident.
Workplace bullying under work health and safety law
Unlike anti-bullying in the FWC, it is no defence to a claim under WHS law that a person’s conduct was “reasonable management action carried out in a reasonable manner.” Instead, there is a far more nuanced assessment.
WHS law in South Australia is based on SafeWork Australia’s “Model WHS Laws”, meaning that they are mostly consistent with the laws in New South Wales, Queensland, Tasmania, the Northern Territory, and the Australian Capital Territory.
Western Australia has engaged in consultation to adopt the Model WHS Laws, however Victoria maintains its existing framework.
The starting point is that both employers and employees must take reasonable care to ensure their actions do not adversely affect the health and safety of others. This decision raises several key issues specifically in relation to bullying, such as:
- do managers and supervisors have an obligation to speak up when they witness bullying behaviour?
- what about other employees?
- what happens when the bullying poses a risk to psychological health alone?
That last point is of particular interest. Earlier this year, SafeWork Australia highlighted the emergence of risks to psychological health in a WHS context. It seems then that this decision could apply equally if the apprentice had, for example, been bullied without any kind of physical interference.
Managing the risk of bullying in the workplace
While employers should already have anti-bullying policies and procedures in place to deal with any allegations of bullying that may have historically only been dealt with by the FWC, there may now be cause to incorporate these into a work health and safety management system.
Previously employers may have been able to negotiate the FWC’s anti-bullying jurisdiction, however under WHS laws there are real and quantifiable consequences for any breaches, including in some cases, imprisonment.