Australia: Workplace bullying – a guide for SMEs and start-ups

Small-medium businesses (SMEs) and start-up companies face particular challenges in managing people. There is often no dedicated human resources department within the business, or HR is just one of many functions that a managing director has responsibility for.

This highlights the importance of keeping on top of the many potential areas of liability in relation to employment issues. And workplace bullying is one of the key emerging risks for all employers.

There is a multitude of laws at federal and state level that regulate bullying. Therefore, bullying behaviour can give rise to a number of different types of claims or legal processes.

These include investigations by work health and safety authorities, workers' compensation claims, discrimination/harassment claims and even common law actions for negligence.

In addition, since the start of 2014, an employee may apply to the Fair Work Commission (FWC) for an order to stop bullying that is affecting him/her in the workplace.

The FWC dealt with 676 claims for stop-bullying orders in 2014-15. Around 90% of claims were resolved through the tribunal's early intervention case management process, with a strong emphasis on mediation.

Early data indicated that between one-third and half of the total number of FWC bullying claims came from employees working in organisations with less than 50 employees. Small-medium businesses therefore need to understand this new area of the tribunal's jurisdiction.

So who can bring a claim, and what is 'bullying'?

Any 'worker' can apply to the FWC for an order to stop bullying 'at work' by another individual or group of individuals:

  • 'workers' include employees, contractors, subcontractors, apprentices, trainees, volunteers and work experience students;
  • 'at work' can mean bullying conduct engaged in while the relevant individuals are physically at the workplace, or (for example) offensive social media comments posted by an alleged bully when they are not at the workplace.

Bullying is defined as repeated unreasonable behaviour towards a worker that creates a risk to that person's health and safety.

In one case, a member of the FWC provided a catalogue of what might constitute bullying behaviour which included:

  • intimidation, threats, humiliation, shouting, sarcasm, victimisation, singling-out, malicious pranks, physical, abuse, verbal abuse, emotional abuse, belittling, harassment, ganging-up, isolation, freezing out, ostracism, innuendo, rumour-mongering, disrespect, mocking, victim-blaming, discrimination.

However, more than one instance of any of these types of behaviour will be required to establish that bullying has occurred.

Another significant limitation is that 'reasonable management action' is not bullying. In many instances, employees may feel 'bullied' when they are the subject of performance management or disciplinary processes.

As long as there is a reasonable basis for taking that kind of action, and it is carried out in a reasonable and fair manner, it will not constitute bullying – regardless of whether the employee perceives it as bullying.

What are the remedies?

Importantly, the remedies which can be ordered by the FWC are directed at preventing future bullying conduct. There is no power for the tribunal to order compensation to a worker affected by bullying.

Very few orders have been made in the FWC cases to date, as a resolution is usually achieved through conciliation or mediation. Examples have included orders that:

  • the bully and persons subjected to bullying avoid contact with each other in future, or only have contact while other people are present;
  • an employer implement anti-bullying training for all staff and procedures for resolving bullying complaints;
  • an employer conduct training for managers in overseeing investigations into workplace bullying allegations.

One intriguing case involved allegations of bullying between family members involved in the running of a number of small companies. The orders imposed included limits on the parties sending abusive, offensive or disparaging communications, and a requirement that they 'be civil to one another'.

It can be seen, then, that the FWC can actually become involved in the management of personal relationships within organisations – where it is established that bullying has occurred.

What should SMEs and start-ups do to address workplace bullying?

Tackling bullying and other unacceptable forms of behaviour in the workplace (discrimination, sexual harassment) is not just important to avoid legal claims.

It is also very much about creating a positive workplace culture that will ensure you can attract and keep the best talent.

Follow these tips:

  • implement a policy on respect in the workplace which includes clear standards about acceptable forms of behaviour, and the consequences of unacceptable conduct including bullying;
  • ensure this policy aligns with your business's processes for dealing with performance management, discipline and dismissal;
  • 'lead from the top' – ensure managers model best practice behaviour. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
    Chambers Asia Pacific Awards 2016 Winner – Australia
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