Remember back in 2014 there were predictions of the floodgates being opened, as victims of bullying rushed to the Fair Work Commission (FWC) to have stop-bullying orders made. When planning for their new anti-bullying jurisdiction, FWC models assumed there would be 3000 claims per year. Many scoffed and said that there would be many more. Instead, the anti-bullying jurisdiction has not turned out as expected, with far fewer applications made. In fact, only 1,396 have been lodged in its first 2 years (or 700 odd a year). They are not steadily increasing and have been steady each month.
This is perhaps best explained by the fact that this relatively new jurisdiction continues to develop, its limits are unknown and there is no financial incentive in bringing a case. Whilst the purpose of the jurisdiction is to provide recourse to an order to stop bullying, this option may, on the contrary, appear to be an unattractive option for some employees who could feel uncomfortable in taking steps against an alleged bully in their current and ongoing place of work.
Growing clarity and understanding about bullying
Arguably one of the most productive outcomes of the FWC jurisdiction has been the cases that have to date decided what is bullying and what is not bullying. As a result, we now have some useful guidance around, for instance: what is reasonable management action[1], how unintentional bullying can be found in unnecessary micromanagement[2], and other forms of bullying behaviour[3].
More bullying is occurring or being reported
Curiously, and inconsistently with this slower than anticipated trickle of cases reaching the FWC, recent research has actually found that self-reported bullying is on the rise. Safework Australia has published a recent and fascinating report. It notes that the six month prevalence rates of bullying, when measured using both a widely accepted international definition and the Australian definition, were similar: 9.7 per cent and 9.4 per cent of workers respectively. According to that research, the prevalence of workplace bullying in Australia has increased from 7.0 per cent in 2009─11. Australia’s current rate now exceeds the rates measured in Europe in 2009─11.
It is possible that growing awareness of bullying through the work of the FWC, and the increased recognition of the importance of protecting employee’s mental health in the workplace (including how bullying has a serious impact on mental health) has contributed to this reported increase.
Of the seven types of harassment measured, the most common forms of harassment reported were: being sworn at or yelled at (37.2 per cent); being humiliated in front of others (23.2 per cent); and being physically assaulted or threatened by patients/clients (21.8 per cent). Unfair treatment due to gender was experienced by 10.9 per cent of respondents. Women were more likely than men to be bullied and experience unwanted sexual advances, unfair treatment because of their gender, and experience being physically assaulted or threatened by a client or patient.
Bullying with a side of harassment and discrimination
Given what this statistical breakdown above reveals, we should not therefore be surprised that these widely reported bullying behaviours, in many cases, do include a sexually harassing or sex discrimination element to them.
Accordingly, those tasked with eliminating or reducing bullying in their workplace need to ensure that they do not compartmentalise their management of behaviour risk in the workplace. In fact, in contrast to the lower than expected take up of the anti-bullying jurisdiction of the FWC, Equal Opportunity Tribunals and courts around the country are now imposing increasing damages awards for sexual harassing behaviour which also could be categorised as bullying.
Specifically, there have been two very recent cases last month involving examples of sexual harassment in the workplace, which could also be seen as involving serious acts of bullying behaviour: Torres v Commissioner of Police [2017] NSWIRComm 1001 (20 January 2017), and Green v State of Queensland, Brooker and Keating [2017] QCAT 008 (10 January 2017). In short, a victim of behaviours characterised as both bullying and sexual harassment, may have a powerful financial motivator to seek damages for their pain and suffering at an EO tribunal rather than approach the Fair Work Commission to stop the behaviour. As noted above, jurisdictional issues including the requirement that the worker remain in the workplace for the duration of the proceedings may appear to be significant road blocks for employees to bring bullying to the fore and seek redress “in real time”.
No room for complacency
Given this, your workplace culture needs to continue to be one that demonstrates zero tolerance for any type of bullying, discrimination or sexual harassment. This is regardless of the fact that bullying applications themselves are not as prevalent as initially predicated. Low bullying figures at FWC are no room for complacency. Make sure that you implement and maintain policies and training around appropriate behaviour in the workplace to ensure employers offer a safe working environment for employees, and have a comprehensive set of options for dealing with allegations of inappropriate behaviour.
Continue this conversation
If you would like to examine this issue in further depth, then join me for Worklogic’s first free webinar of 2017, “Bullying and sexual harassment: “What’s going on out there?”. I will explore how and why the recent cases of sexual harassment have a bullying element to them, and what it means for your workplace culture and people risk. From this 30-minute webinar, you will walk away with:
- A better understanding of recent cases where there has been cross-over between bullying and sexual harassment behaviours
- The dynamics which can make workplaces prone to such behaviours
- What steps you need to take, or further finesse, to minimise the risk of such behaviours arising
About Grevis Beard
Grevis Beard is the co-founder and director of Worklogic. From his career as a barrister and solicitor and his specialisation in discrimination law, Grevis has significant knowledge of the dynamics of workplace disputes and their resolution. Grevis works with a range of clients to improve workplace communication, manage workplace risks, handle complaints and improve employee behaviour.
Worklogic works with employers to resolve workplace complaints and create a positive culture at work. We can help you develop a powerful framework for appropriate behaviour at work. We also deliver interactive on-site training programs to help your staff become supportive bystanders, challenge mindsets and to reinforce your values.
[1] See principles set out by Hampton C in Ms SB [2014] FWC 2104 and Hatcher VP in Amie Mac v Bank of Queensland and Others [2015] FWC. Examples of reasonable management action Aly v Commonwealth Bank of Australia & others [2015] FWC 3604 (breach of ‘clean desk’ policy by a Commsec officer); Appellant v Respondent [2015] FWCFB 1972; AB [2015] FWC 3353 (Salvation Army job placement consultant who refused to undertake types of work legitimately required of her).
[2] see Peter Carroll v Karingal Inc [2016] FWC 3709
[3] For example bullying was found when starting a disciplinary process over performance concerns was disproportionate and outside industry norms starting a disciplinary process over performance concerns alone: James Willis v Marie Gibson; Capital Radiology Pty Ltd [2015] FWC 1131)
