Unfortunately, bullying and harassment in the workplace is a common complaint we receive from our clients. It is often the case that such behaviour can be covert and manipulative extending over long periods of time. As a result, we regularly see employees suffering long term harassment end up in the workers compensation system after enduring a long battle. We strongly hold the view that the harassment should be addressed in the workplace in the early stages to prevent any risks to the health and safety of employees.
So what can you do if you are suffering from bullying and harassment in the workplace?
We have recently discussed the new anti-bullying legislation introduced 1 January 2014 into the Fair Work Act 2009(Cth) ("the Act") in " Anti bullying legislation 3 months on from major changes to the law".
There have been approximately 150 applications made to the Fair Work Commission ("FWC") from 1 January 2014 until the end of March 2014. Notably, we have seen that bullying occurring prior to 1 January 2014 (the introduction of the legislation), will be relevant and considered by the Fair Work Commission in the decision as to whether an order an be made to stop the bullying.
Some recent decisions on the anti-bullying provisions have also provided further clarity to the practical interpretation of this new area of the law. For example, in B v M: Department of Human Services (Commonwealth)  FWC 2076 the FWC has held that a person receiving 'carer' payments is not a worker within the meaning of the Act. While the anti bullying provisions do provide a wider definition of who can make an application under the Act to include, for example an employee's clients, customers and contractors, the FWC has held it does not extend to someone receiving carer payments from Centrelink. It is important to keep in mind the wide scope of the provisions that extend beyond the employment relationship.
Another recent case has examined the definition of bullying and harassment under the anti-bullying provisions and reiterated the regular and systematic nature of the harassment in order for the Commission to make a finding that bullying and harassment has occurred.
Commissioner Hampton, in Ms SB  2104,examined the following key points identified in the definition of bullying behaviour including:
- Bullying must be of a repeated nature
- The bullying must be unreasonable
- It must create a risk to health and safety
- Reasonable management action taken in a reasonable manner will be a defence
Repeated nature of bullying and harassment
Commissioner Hampton reiterated that the interpretation of the wording of the provisions must commence with the ordinary and grammatical meaning of the words and include the context of the situation. The Explanatory Memoranda expands on 'repeated' to include persistent behaviour and a range of behaviours over time. No specific number or times of incidents is identified in the Act or Explanatory Memoranda, provided there is more than one occurrence.
The test of a reasonable person, or an objective test, operates to ascertain whether the bullying behaviour is 'unreasonable' and takes into account all the circumstances at the time.
Risks to health and safety
The risk must be real and not conceptual and means the possibility of danger to health and safety; it does not necessarily mean actual danger to health and safety. The emotional and psychological health of the worker may also be relevant in ascertaining whether the action is reasonable and in considering the full circumstances and context.
Reasonable Management Action
There are three components to this 'exclusion' or defence under the Act. The FW Act provides that behaviour is not classified as bullying if it is management action, which was reasonable action to be taken by the employer, and it was carried out in a reasonable manner. Again referring to the Explanatory Memoranda, this includes every day actions to control work. It is an objective test and must include the context and circumstances of all parties involved.
It's interesting to note that this case also suggests that actions will be considered reasonable action even if it could have been 'more reasonable' or that it could have been done in a better way. Provided the actions on the whole are reasonable then this will be sufficient. The unreasonableness is not viewed from the perception of the Applicant but must be from an objective perspective. Given the FWC statistics that the majority of applications so far have been against managers and supervisors, it will be interesting to see how difficult this test may prove for employees to pass.