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Anti Bullying Legislation, What You Need to Know

Posted by: ADP on 4 August 2014 in Compliance

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August 4 – By Leon Gettler  

Workplace bullying is a matter that should concern all companies. From 1 January 2014, a worker who reasonably believes that he or she has been bullied at work can apply to the Fair Work Commission for an order to stop the bullying. The Commission can only make that order if there is a risk that the worker will continue to be bullied at work by the particular individual or group of individuals. It does not have the power to award compensation or reinstatement. 

Bullying in the workplace can take several forms:

  • aggressive or intimidating conduct
  • belittling or humiliating comments
  • spreading malicious rumours
  • teasing, practical jokes or “initiation ceremonies”
  • exclusion from work-related events,
  • unreasonable work expectations,
  • including too much or too little work, or work below or beyond a worker’s skill level
  • displaying offensive material or pressure to behave in an inappropriate manner.

Workers covered by the anti-bullying legislation include those working for a “constitutional corporation”, that is a Pty Ltd company or an incorporated association.

The Commission has already handed down a number of stop bullying orders.

According to the Fair Work laws, action carried out by a manager in a reasonable way isn’t seen as bullying. Reasonable management action includes:

  • performance management
  • disciplinary action for misconduct
  • informing a worker about unsatisfactory work performance or inappropriate work behaviour
  • asking a worker to perform reasonable duties in keeping with their job and maintaining reasonable workplace goals and standards.

None of this would constitute workplace bullying. But when employees are unfairly singled out, it crosses over into that territory.

Australian employers also have responsibilities under the Occupational Health and Safety Act. Under the Act, employers have a duty to take all reasonably practicable steps to protect the health and safety at work of employees. They are required to take proactive steps to identify hazards with the potential to affect the health and safety of employees and implement measures to eliminate or control the risks arising from those hazards. That includes bullying behaviour.

Comcare makes it clear that employers are required to provide an environment that’s safe, without putting their health at risk.

Health is defined in the law as covering physical and psychological well-being. This implies that bullying has to be treated like a health and safety issue which means managers need to apply standard work health and safety risk management principles (just as they do to other hazards in the workplace). Comcare can investigate incidents of bullying and pursue enforcement action against both the employer and the employee for identified breaches of their duty of care

Legal issues aside, bullying can also impact on the bottom line. It can result in high levels of absenteeism and staff turnover, teams breaking down resulting in greater inefficiencies, costs associated with counselling, mediation and support, poor public image and costs associated with compensation claims and litigation.

When handling a bullying complaint and dealing with an alleged perpetrator, companies should also take natural justice into account .People can be accused of bullying by people who want to get even with them or who are over-reacting to a situation. Natural justice means they have to be fully informed of the complaint and the complaint process, they have the opportunity to reply to the complaint, they can be represented by people of their choice, all proceedings are kept confidential and they are innocent until proven guilty.

Managers need to make it clear that bullying of any kind will not be tolerated. They need anti-bullying policies. These policies would:

  • prohibit actions like tantrums, screaming, and threats
  • make it easy for employees to complain if they’re the victim of a bully.

The policies should also frequently consult employees to see how they’re feeling about the workplace, look out for body language clues that might indicate an employee is a victim, be cognisant of a spike in absenteeism from an employee who’s rarely sick and take action immediately when they spot bullying. When dealing with the bully, they should focus on their behaviour, not their personality. They need to make sure the bully understands the consequences if their behaviour continues and document all conversations. If it doesn’t stop, they should consider serious penalties and finally, managers need to make sure they’re a role model for employees.

Other measures could include:

  • counselling and training managers on how to handle it
  • communicating about it on the Intranet
  • staff briefings
  • employee surveys
  • awareness training for all employees enabling them to identify the signs of bullying
  • assertiveness training to help reduce the likelihood of employees becoming victims.
  • behavioural training sessions to help perpetrators recognise the offensive elements of their behaviour and change that pattern.

Another important step is to look at the company’s culture.  Psychologists say bullies are found in workplace cultures where there is a high level of competition, where there is constant radical change, where there is a climate of insecurity and people are always worried about the next round of redundancies. It comes down to a failure of management, it says. These sorts of places have a strong “macho” style of management (although of course female bosses bully too). They also have rigid hierarchical structures, where staff are just expected to do as they’re told, where there are excessive workloads and a lack of procedures to tackle bullying and harassment issues.

 

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