Reading time: 4 minutes

Manifestations of workplace bullying and discrimination in the 21st century have continued to take many forms. In 2015, we saw the inherent strains of racial discrimination in Australia’s culture in the booing of AFL player Adam Goodes, and our commitment to tackling sexual discrimination halted with the vacant position of Sex Discrimination Commissioner for the past four months.

Legislative Background for Workplace Bullying

Despite the Amendments to the Fair Work Act (‘the Act’) that came into effect on 1 January 2014, power imbalances and intimidation are still ripe in contemporary workplace culture. These amendments have attempted to reshape the culture of bullying in the workplace, by defining bullying as a repeated unreasonable action that creates a risk to health and safety.

Shortly after the new legislation was enacted, the case of Ms SB [2014] FWC 2104 appeared before the courts. The case examined the effects of the amendments to the Act. A point of interest was the use of the word ‘repeated’ in the legislation. However, the case construed repeated to mean more than once, but not necessarily multiple times. Another key theme Commissioner Hampton, Head of the Fair Work Commission’s anti-bullying panel, unpacked was the concept of reasonable management action under s789FD(2) of the Act. In light of this case, companies should review their bullying guidelines, policies, and procedures, and create a transparent investigation into any concerns raised. Commissioner Hampton also stressed that bullying doesn’t stop after the issue is resolved. However, it should be an ongoing process to maintain good relations between employees. After all, if bullying is negatively affecting an employee, it is likely causing the business detriment.

Impacts of bullying on a business can have negative implications for the business’ brand name, goodwill, reputation, and productivity. How employers respond to complaints is crucial as employers have a duty of care in Australia. In Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64. the bullying complaints made by an employee were not taken seriously and, as a result, compensation claims arose. This case demonstrates that having an anti-bullying policy is not enough, there is a duty of care owed by the employer to deal with a complaint appropriately.

In distinguishing from the above cases, Koehler v Cerebos (Aust) Ltd [2005] HCA 15 (Unreported, McHugh, Gummow, Hayne, Callinan and Heydon JJ, 6 April 2005) provides an example of when an employee fails to establish that the employer breached their duty of care. As a result, the High Court concluded that it was not reasonably foreseeable that the employer would have seen the risk that led to the employee’s psychiatric illness.

Climbing the Corporate Ladder

Up for discussion is the fact that the High Court in Koehler explained an employee on accepting a position undertakes that they can do the job. If the law assumes that employees can do this, is it fair to assume that some tasks incur very high workloads and stress levels? This point directly relates to the culture in traditional law firms and large corporations where employees typically climb the ladder in a hierarchical structure. Does personal animosity become an accepted norm of such corporate culture?

In 2012, the House of Representatives Standing Committee on Education and Employment conducted an Inquiry into Workspace Bullying and tabled its report Workplace Bullying: We Just Want It to Stop (‘the Report’). The Report suggested multiple avenues for targeting workplace bullying such as a national accreditation, a Commonwealth run investigation service and a mediation service for workplaces. While these detailed suggestions were only noted by the Fair Work Commission, from the 1 January 2014, workers who reasonably believe they have been bullied can apply to the Fair Work Commission for an order to stop the bullying. Courts have been given the power to remedy any contravention of such an order which can be accompanied by penalties for individuals and corporations. These changes also come with a focus on management and the avoidance of conflict through consultation and cooperation.

Future of Bullying in the Workplace

While the Fair Work Act and Commission attempt to impose obligations on employers and employees to strengthen the culture within the workforce, the growing use of social media presents many future challenges to employment relations. With the use of social media becoming even more apparent in daily life, the boundaries between private and public are blurred. Are online platforms such as Facebook, Twitter, and Instagram public or private domains? Should employers be able to impose obligations on employees regarding social media use? These are questions that will be shaping the agenda of future law reform in employment law. It is important that employees are doing all they can to enhance employee relations and, therefore, foster productive and positive workplace relations.

Questions? Ask our employment lawyers and call us on 1300 544 755.

Webinars

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Online
Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer