Do Your Employees Think You're a Bully?
Changes to the Fair Work Act 2009 (Cth) on 1 January this year resulted in Australia adopting an unprecedented set of anti-bullying laws. These laws now mean that an employee can apply to the Fair Work Commission before consulting with you as the employer, for an order to compel the bullying to stop.
The laws are new, broad and treated as civil claims, as opposed to being dealt with under work health and safety law and anti-discrimination law. The challenge with this, as with any new law, is that it will take time through rulings for the business community to get clarity around the subtleties of what does, or does not constitute bullying.
Think about your team. Have you ever tossed a document in an off handed manner across a table at someone? Been so frustrated that you’ve screwed up your face, squinted your eyes or even pursed your lips when commenting directly to them about their work? Ever caught yourself speaking with someone in a tone that you might normally reserve for your children? Did you answer yes to any of these questions? If so, your staff might think you're a bully.
Bullying occurs when a person or group of people repeatedly behaves unreasonably towards a worker or a group of workers in the workplace and the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner. For example it is not unreasonable for management to performance manage someone or invoke disciplinary action for misconduct. It is not unreasonable to tell an employee that their work performance, or in fact their behaviour, isn’t satisfactory or falls short of the standards you have set for your business. Bullying also isn’t directing a staff member to perform duties that are part of their job.
In addition to this, the bullying laws won’t apply to your business if you are a partnership, sole trader, state government department and entity or a volunteer association with no employees. However, if you don't fit into one of these categories and have employees, contractors, work experience students and volunteers working in your business, then these laws apply to you. A word of warning to the former, excluded organisations can still be drawn into these laws under some circumstances and there are always avenues for aggrieved employees to seek remedies.
The good news is that if you find yourself at the Commission, their tribunal is required to hear your side of the story too. Better still to avoid this, there are a few simple things that you can do to minimise the risk to your business:
If you have any questions or doubts about the new anti-bullying laws or performance management in general, please contact your relevant ESV engagement partner on 02 9283 1666.
Article by Senka Coulton