McDonald Murholme’s Managing Director, Alan McDonald and Senior Associate Andrew Jewell discuss the reasons for the low number of bullying cases brought in front of the Fair Work Commission, and the flaws of the system.
See below article for further details.
Why isn’t the new anti-bullying regime being used by workers?
Since the introduction of the new anti-bullying regime to the Fair Work Commission on January 1, 2014, only one out of 874 applications has been granted – but why is this the case? And why have so few applications been lodged?
According to employment law firm McDonald Murholme’s managing director, Alan McDonald, this figure demonstrates that the regime is not benefiting employees.
“The law is a radical change introduced by a radical government which will take time to become accepted,” Mr McDonald says.
“For the first time, a tribunal has power to interfere in the personal relationship between employees in matters which extend far beyond the usual issues of pay and conditions of work.
“The Fair Work Tribunal has spent a lot of money training its members to be prepared to handle the bullying complaints.”
But if so much work has gone into preparing for the complaints, why are fewer people than anticipated submitting applications?
According to Andrew Jewell, senior associate at McDonald Murholme, the commission had anticipated hundreds of complaints in the new regime’s first month, but there “just hasn’t been a large number of complaints”.
He explained that the new regime acts as an avenue for an employee to make a complaint if they feel they’re being bullied at work.
“It’s effectively a proceeding conducted by the FWC,” he told HC. “The commission will try and solve claims by an agreement; otherwise there will be a determination.”
Jewell speculated that there were a few reasons for the low number of complaints.
“First and foremost, there is no compensation to be claimed if bullying is found to be occurring,” he told HC. “The only order you can get is that the bullying behaviour ceases.
“Secondly, the definition of bullying is relatively narrow, which makes it hard to make a successful claim.”
The Fair Work Act defines bullying as repeated unreasonable conduct that has the potential to cause a health and safety risk.
Jewell added that another reason for the low number of claims being made is that practically, the claims aren’t dealt with very quickly.
“An employee could make an allegation, but the subsequent process could go on for three to six months,” he explained.
“It’s not often that people think they are being bullied, but having to put up with it for six months makes the situation worse.
“It’s also difficult to get a successful claim against a manager in circumstances involving performance management,” he added. “These tend to be the circumstances in which people think they are being bullied.”
Jewell said that if an alleged bully’s behaviour can be deemed ‘reasonable management’, the claim would collapse.
“There’s a secondary element that bullying can’t be a reasonable management action,” he explained. “Any conduct considered to demonstrate this is exempt from bullying orders.”
“Very few law firms are advising these orders as a primary option,” Jewell warned.
“There could be quite unreasonable conduct going on that is held to not be repeated, so deemed not to be bullying.”
According to Jewell, a more traditional route – which employees are still opting to take – would be a worker’s compensation claim.
“Employees cannot make a bullying claim if they already have a worker’s compensation claim in,” he said. “A lot of employees are sticking to compensation claims.”
“In circumstances where someone believes they are being bullied, we often advise them to take a different pathway to the new regime,” he continued.
“The primary option – if someone else’s behaviour is affecting their health – would be to make a worker’s compensation claim.”
“Another aspect that is likely to be affecting the decisions is that employees are given a choice: they can have legal representation, which would be costly considering no compensation is available; or they can just go one-on-one with their employer, which most people would find daunting.”
“Clearly the bullying jurisdiction is not cheap or an easy option for employees; any employee with a serious claim must take legal advice otherwise suffer a one in 874 chance of success,” McDonald added.
“By taking legal advice they may find that the bullying is merely one of the options and not necessarily the best for them which is something employers need to be aware of as well.”
Reference: “Why isn’t the new anti-bullying regime being used by workers?”, HC Online, 4th November 2015