Workplace Bullying & Harassment. Presented by Guy Biddle Partner, Finlaysons

Transcription

1 Workplace Bullying & Harassment Presented by Guy Biddle Partner, Finlaysons

2 Workplace Bullying: Definition The draft SafeWork Australia Code of Practice and the proposed amendment to the Fair Work Act 2009 use a common concept. The elements are: o repeated and unreasonable behaviour; o directed towards a worker or a group of workers; and o the behaviour creates a risk to health and safety. 2

3 Workplace Bullying: Background Developing focus on workplace culture in Australia. Appears to stem from a rising awareness of negative effects to productivity caused by mental harm. Received national attention through the case of Brodie Panlock. 3

4 The Legislative Response Model Work Health & Safety Legislation Code of Practice. Proposed amendments to the Fair Work Act Existing legislation concerning discrimination and compensation for mental harm in the workplace. 4

5 Proposed Amendments to the Fair Work Act Intention is that they commence from 1 July Apply to National System Employees and Employers. Enlivened by a worker who reasonably believes that he/she has been bullied at work. Worker is the extended definition contained in the model Work Health & Safety Laws, i.e. employees, contractors, sub-contractors, trainees, volunteers, etc. The application is to the Fair Work Commission seeking an order. Fair Work Commission must start to deal with an application within 14 days of it being made. 5

6 Amendments to Fair Work Act (continued) If the Fair Work Commission is satisfied that a worker has been bullied, the Fair Work Commission may make any order it considers appropriate (other than an order requiring payment of pecuniary amount) to prevent the worker from being bullied at work by the individual or group. The Fair Work Commission is required to consider, in making orders: o the progress and outcomes from any other investigation into the same conduct by another body (i.e. Safe Work SA); o The availability of grievance procedures (i.e. as part of company policies). The making of an application does not prevent a worker from pursing rights under other legislation, i.e. there can be a multiplicity of proceedings arising from the same conduct. Pecuniary orders can only be made where there is a breach of an initial order made by the Fair Work Commission. 6

7 Draft Code of Practice The Work Health & Safety Act 2012 gives legislative force to Codes of Practice. The draft Code for Preventing and Responding to Workplace Bullying is likely to be finalised before the end of As a Code of Practice will require analysis and compliance with its mandatory terms. 7

8 Draft Code of Practice: Key Features Seeks to emphasise that reasonable management action to direct and control the way work is carried out is not to be considered workplace bullying. Notes that discrimination and harassment form part of the offending behaviour. Defines harassment as unwelcome behaviour that intimidates, offends or humiliates a person because of a particular personal characteristic such as race, age, gender, disability, religion and sexuality. 8

9 Draft Code of Practice: Key Features (continued) Acknowledges that conflict in the workplace is not, of itself, offending behaviour. The behaviour that is said to be potentially caught can be intentional or unintentional. (Examples) 9

10 Code of Practice: Definitions Repeated behaviour is described as persistent behaviour. Unreasonable behaviour is defined as behaviour that a reasonable person, having regard for the circumstances, MAY see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening. Risk is defined as the possibility that harm (death, injury or illness) might occur when exposed to a hazard. 10

11 Code of Practice: What is required to manage workplace bullying Identifying the hazard: communication with workers, monitoring patterns of absenteeism, staff turnover, grievance, etc. Controlling the risk: create a workplace where everyone is treated with dignity and respect. Measures to implement: develop a Code of Conduct including a bullying policy; reporting mechanisms in a confidential, reasonable and timely manner; empowering supervisors; facilitating teamwork and cooperation; discouraging exclusive clubs and cliques. Provision of training for all levels of the business. 11

12 Management of Claims Richardson v Oracle Corporation (2013) FCA 102. Debate in Richardson s case concerning the appropriate way to undertake an investigation. Many of the issues will be addressed by the Code of Practice where it details the way to respond. 12

13 Key Steps (in the face of a complaint) Timely intervention involving a detailed interview with the person who is making the complaint. Must address issues of confidentiality in the undertaking of an investigation. Should address with the complainant his/her expectation of an outcome. Must act objectively (supported by Richardson s case). The complainant does not have a right to veto or influence reasonable enquiries. Follow the principles of Natural Justice. 13

14 Management in the Context of Legislation 14-day complaint window to Fair Work Commission means that investigations are to be undertaken promptly. Policies and Procedures should be seen as a vehicle to assist in managing the outcomes that might be expected from an investigation as the Fair Work Commission will look to these to assist in defining its orders. It may be that the intervention of the Fair Work Commission in any given case may trigger a response by Safe Work SA. An investigation does not prohibit taking action to discipline and counsel as may be required. 14

15 Workplace Bullying & Harassment Presented by Guy Biddle Partner, Finlaysons