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Workers exploiting new FWC bullying jurisdiction

Changes to stamp out bullying in the workplace are being exploited by opportunistic employees with some frivolous cases costing businesses up to tens of thousands of dollars. 

Since the Fair Work Commission was granted jurisdiction to resolve bullying complaints in January, employees have been able to gain easier access to a range of workplace protections. However, some have taken advantage of these protections to pre-emptively buttress workers’ compensation claims or disrupt unwanted performance management procedures.

While most employment lawyers believe the FWC has handled its new responsibilities effectively, they also concede a number of significant drawbacks for businesses and unintended consequences.

M+K Lawyers partner Andrew Douglas told Dynamic Business a number of cases had now arisen in which the industrial umpire’s new bullying functions had been exploited by aggrieved individuals as a “pre-emptive method of supporting a workers compensation claim”.

“There is a particular category of case which we are now starting to identify where people are being performance managed,” he said. “They don’t like the performance management so they raise a bullying complaint… It’s done to frustrate a performance management process.

“As part of resolving that bullying complaint, people come together at the Fair Work Commission and agree to separate the person out from that point of bullying. So Fred will no longer be supervised by Terry.

“Then the person puts in a workers’ comp claim supported by medial certificate to the employer and the insurer. The investigation undertaken by the insurer reveals there had been a change in the way people were being managed.”

Hebert Smith Freehills partner, Tony Wood, agreed the new system had empowered individuals who believed they were the victims of bullying to strike back at employers and disrupt standard business practices.

“There’s no question that there are a lot unreported claims and allegations on bullying which are in response to performance management,” he said. “It’s a natural reaction for employees who don’t understand their deficiencies in performance to want to strike back. And there’s no question that the laws provide them with the legal framework to be able to make a counter-offensive allegation.”

Mr Douglas told Dynamic Business it was a misguided step to charge the FWC with resolving bullying complaints because this gave it the ability to intrude upon basic business decisions and functions.

“It creates a jurisdiction which allows the FWC to interfere into a business’ prerogative about how they manage their affairs. They can make very wide and powerful orders about how the workplace is managed,” he said. “You can imagine an order that says a person will not pass within five meters of another person and if it’s not organisationally viable for that to occur that decision can be disastrous.”

Earlier this year the FWC ordered a male worker to stop exercising on a balcony in front of a female colleague between 8:15am and 4:15pm. He was also ordered not to speak to the female colleague, send emails to her or comment on her appearance.

On the whole, Mr Wood was positive about the changes and believed the new FWC responsibilities were a “game-changer” in that business behaviours around bullying were now evolving and the issue was treated more seriously.

“I think it’s had a really beneficial impact on the way employers are approaching their response to bullying complaints. I meant that in the sense that they now have broad policies and there is much greater education and awareness of the need to take these matters seriously.”

However, he conceded the costs for businesses arising from some claims could be very significant and cost tens of thousands of dollars, even in those instances where the claim has no sound basis.

“Employers are having to seek legal advice in preparing responses to this new jurisdiction even where the claims are frivolous or not within the framework of the legislation,” he said. “Certainly costs can add up to the high tens of thousands of dollars.”

According to recent media reports, only 13 complaints have progressed all the way to hearings suggesting the FWC has been effective in resolving disputes. The number of complaints received by the industrial umpire has also not been as high as previously thought or budgeted for.

Industrial relations expert Professor Andrew Stewart at Adelaide University told Dynamic Business that it was still too early to “draw definite conclusions” on the bullying shake-up.

He acknowledged the FWC was dealing with fewer complaints than previously thought but stressed many were very difficult to handle because they involved multiple parties and organisations.

If a business fails to comply with an order issued by the FWC it may be liable for hefty fines of up to $51,000. To avoid being dragged into a bullying dispute, businesses should put in place clearly defined anti-bullying policies and promptly carry out investigations into any allegations.

Joe Kelly

Joe Kelly

Joe Kelly is a writer for Dynamic Business. He has previously worked in the Canberra Press Gallery and has a keen interest in business, the economy and federal policy. He also follows international relations and likes to read history.

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