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How to prepare for new workplace bullying laws

As many employers are now aware, significant changes to the Fair Work Act 2009 (Cth) will come into effect from 1 January 2014.

These changes will amend how workplaces and the Fair Work Commission are required to deal with allegations of workplace bullying.

As we have discussed in related articles (see below) the ramifications of these amendments will be wide-reaching and employers cannot afford to get caught with their pants down before the courts and the Fair Work Commission.

Our complete and comprehensive guide will help you to understand the full impact of the anti-bullying measures on your workplace.

Recap: The New Provisions

The new provisions allow workers (broadly defined) who reasonably believe they are being “bullied at work” to apply directly to the FWC for an order to stop the bullying. The FWC must look at the application within 14 days of it being made.

A worker will have been bullied at work if an individual, or group of individuals, repeatedly behaves unreasonably towards the worker, creating a risk to the worker’s health and safety. Reasonable management action, carried out in a reasonable manner, will be excluded.

An order to stop the bullying will only be made if the FWC is satisfied that the worker has been bullied, and there is a risk the worker will continue to be bullied.

When making the order, the FWC must take into account any final or interim outcomes of an investigation into the bullying allegations.

Examples from the FWC

We have already noticed an influx of workplace bullying dismissal cases coming before the Fair Work Commission. These cases have highlighted a number of crucial issues for employers to consider:

  • Be conscious of the differences between strong, abrasive personalities and bullying
  • Address employee performance issues in a reasonable manner
  • Avoid excessive workplace sensitivity
  • Respond to bullying allegations in a timely and efficient manner
  • Ensure procedural fairness throughout all aspects of an HR investigation
  • Follow workplace policies and make sure your employees know their obligations!

How can you prepare?

There are a number of prudent measures that employers should take now to start mitigating the impact of the amendments.

1. Use fail-safe workplace investigation procedures
Under the new laws, the FWC must take investigation outcomes into account before making any orders. This suggests to us that if an employer has thoroughly and soundly investigated an allegation of workplace bullying and the allegations were not proved, an employee (and the FWC) may have a hard time justifying the issue of a stop the bullying order.

2. Be aware of new obligations
Continue to monitor the situation before 1 January to stay on top of current developments and potential changes.  Ensure your managers and HR personnel are up to date.

3. Minimise risk
Minimise the risk to your workplace by updating or creating workplace policies that deal specifically with workplace bullying. Clearly outline employer and employee obligations, and disciplinary ramifications for breaching such policies.

4. Know what constitutes workplace bullying
Understand what is and what is not workplace bullying.  Be aware of the differences between clashing personalities and legitimate workplace bullying. Already cases have started to warn against the dangers of excessive workplace sensitivity.

5. Understand the consequences
If you fail to prepare for the new workplace bullying amendments, be prepared to face the consequences. Compensation payouts (already seen to be in the tens of thousands), reinstatement of rogue employees, and increased public scrutiny and embarrassment are just some of the possible outcomes for under-prepared and ill-equipped employers. Can you afford to sit back and watch that play out?

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