How to stop workplace bullying – with Commissioner Peter Hampton and Rebecca Richardson
In this episode, James Judge speaks with Commissioner Peter Hampton from the Fair Work Commission and Rebecca Richardson of BAL Lawyers Employment Law and Investigations Group and looks at understanding and responding to stop bullying applications.
Based in Adelaide, Commissioner Peter Hampton has been with the Fair Work Commission since 2010. He has held a range of senior positions within the South Australian business community as well as formerly serving as Director of Policy and Strategy of Safe Work South Australia.
Rebecca Richardson is an Associate at BAL Lawyers who deals regularly with workplace bullying matters and sees the real-world impacts upon the lives of workers who go down this legal road in response to unreasonable treatment.
Some topics we cover:
- How is bullying defined by the Fair Work Act
- Who can apply for Stop Bullying orders
- What are the differences between reasonable management action and bullying
- How Stop Bullying applications work; and
- What are some of the issues for workers applying for Stop Bullying orders and what can go wrong
Resources we mention:
For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!
Welcome to the HR Breakfast Club podcast. I’m James Judge and our focus across this series is the intersection of the world of work and the law. Each episode looks at a specific issue you might be facing and through conversations with experts, explores the challenges that come from dealing with that issue, and hopefully give you some actionable insights.
In today’s episode, we look at understanding and responding to stop bullying applications, with Commissioner Peter Hampton, from the Fair Work Commission, and Rebecca Richardson from BAL Lawyers. Based in Adelaide, Peter has been a Commissioner in the Fair Work Commission since 2010 and panel head of the Commission’s anti-bullying jurisdiction since 2013. This follows a career that includes holding various senior positions in the South Australian business community, as well as formally being director of policy and strategy for Safe Work South Australia.
Rebecca is an associate with the employment and investigations team at BAL Lawyers in Canberra. Her work predominantly focuses on advising on the responsibilities and rights of both employees and employers. She regularly assists clients on matters involving bullying, underpayment, unfair dismissal, adverse action, and discrimination. Commissioner, before exploring how stop bullying applications work, I thought I’d start by asking you to explain exactly what bullying is, or more specifically, how is it defined as far as the law is concerned?
Sure. Well, look, fundamentally, workplace bullying is about unreasonable conduct and behavior in the workplace, but the definition, which comes from section 789FD of the Fair Work Act, puts a number of qualifications. In other words, not all unreasonable conduct in a workplace will qualify as workplace bullying. So the qualifications are firstly, a conduct must be repeated. So what that means is that even a very serious incident of unreasonable conduct will, of itself, not qualify as bullying. So it needs to be repeated. It doesn’t necessarily have to be the same class of unreasonable conduct. It could be a pattern of conduct, but it must be more than one event. Secondly, the conduct must be by an individual or a group of individuals, and it must be directed towards the applicant worker or the group of workers to which the applicant belongs. The next qualification is it must occur whilst the applicant is at work. Now, at work means, in essence, whilst they’re at the workplace or wherever the applicant worker goes whilst they are performing work.
So there are two other qualifications as well. Firstly, the unreasonable conduct not only has to be repeated, but it must create a risk to health and safety. So that’s an important qualifier, that not all unreasonable conduct qualifies as workplace bullying, it must be such as it does create a risk to health and safety. Lastly, the definition also notes that workplace bullying is not reasonable management action taken in a reasonable manner. The intention of that appears to be to acknowledge that managers and supervisors have the right to conduct the workplace and to make reasonable management decisions, and providing that is done on a reasonable basis, that’s not going to be workplace bullying. So look, that’s the definition under the act.
Look, I did want to ask you about reasonable management action and a balance between that and bullying behaviors. But before I do, I just wanted to say that it’s true that not just employees in the traditional sense can access this jurisdiction, or in layperson’s term, seek to apply for one of these orders.
Yes, the expression that’s used in the act is worker. So worker obviously includes an employee, but it also includes other types of workers. So for instance, contractors, subcontractors, students on work experience, volunteers in organisations, providing it’s not a wholly volunteer organisation. So there’s a whole class of people broader than the definition of employee that are considered workers. So it’s actually a very broad scope and includes anyone, in effect, performing work for a business.
Thinking about our listeners who might be handling a complaint of bullying within an organisation, where is that line drawn between what a worker feels are bullying behaviors, as opposed to what an employer believes is simply a lawful direction or reasonable management action?
Look, that’s an excellent question, and indeed, that’s the setting in which many stop bullying applications come to the Commission. Look, firstly what I’d need to say about that is both the assessment of whether or not behavior is workplace bullying and by definition, whether it is or is not reasonable management action, that judgment is made by the Commission objectively. So importantly, it’s not a matter of whether or not an applicant worker or the manager considers that the conduct is or isn’t bullying behavior. And it’s not so much a question of whether the bullying or the unreasonable conduct is intended to be bullying behavior or not. Largely speaking, all of that is irrelevant. What matters is, objectively, whether the conduct meets the definition and we make that assessment by reference to what would a normal and reasonable expectation of conduct and behavior in the workplace would be.
So it’s against that background that we also make the decision as to whether or not conduct is reasonable management action taken in a reasonable manner. Now firstly, is the action management action? So not all decisions or not all things that occur in a workplace will be management action, but generally speaking, giving of directions, disciplinary action, performance improvement processes, providing feedback, look, in general terms, at least all of that would be management action and therefore capable of fitting within the definition.
Secondly, the question is, is it reasonable to undertake the management actions? So in other words, is it reasonable to be given the directions? Is it reasonable to be implementing the disciplinary process? So for instance, it’s got to be based on some sort of objective criteria rather than just done because it can be, or a person’s trying to exercise their authority, or it’s being done deliberately to intimidate someone. So is it management action? Is it reasonable that it be implemented? And is it being undertaken in a reasonable manner? So is it procedurally fair? Are natural justice principles being applied? Is it consistent with policy? If all of those boxes are ticked, then the likelihood is that it’s reasonable management action taken in a reasonable manner rather than workplace bullying. So that’s how the Commission, at least, goes about trying to decide that question.
Okay, thanks. Given we’ve discussed what bullying might be, Rebecca, could you step us through how stop bullying applications work and what hurdles an applicant might face to successfully get an order granted in their favour?
It’s very easy for the applicant to start the process. The first thing that they do is fill out a form from the Fair Work Commission website, and there’s a very small fee that goes along with putting in that form. After making the application, they receive a response from the employer and the bully or, well, the employer and the bully will be invited to respond to the application. Then after that, most matters move forward to a conciliation. In my experience, most matters settle at that stage.
Importantly, if the parties cannot settle and the matter moves on to a hearing, it becomes quite difficult for the applicant, particularly for two reasons. The first reason is that the Commission has no power to award compensation for past acts of bullying, which means that the employee would likely be out of pocket if they’re getting legal representation. Or alternatively, if they’re self-represented, it’s quite a difficult process, which most people find pretty stressful. And as we just heard from the Commissioner, it’s not as simple as what someone might feel is bullying. There are a lot of definitions of bullying and lots of exceptions like reasonable management action that don’t count as bullying. So I think it is somewhat difficult for a layperson to go through the process.
Additionally, another reason people find stop bullying applications difficult in my opinion, is because when you put in the application, even though you are naming the bully, often the employer is incentivised to stand behind that bully throughout the process. Most likely, they don’t want to move all the way to hearing and have a public decision handed down. I think that it often becomes quite difficult in the workplace for the applicant.
Once an application has been put in and the application is found to be valid, Commissioner, what is the Fair Work Commission’s role in then handling applications for stop bullying orders?
Well, look, as Rebecca’s pointed out, I mean, there are a number of avenues or methodologies that the Commission can apply. I mean, fundamentally the Commission’s role is to determine whether or not, assuming there’s a valid application, whether or not there has been workplace bullying, secondly, if there is a future risk of workplace bullying, and then fundamentally to consider whether to make orders or not. But because of some of the issues that Rebecca has raised and because of the nature of the Commission, which is a quasi-judicial tribunal, it’s not a regulator, it doesn’t do investigations, it deals with applications and must conduct processes applying natural justice and generally in an open manner. So, look, our role is fundamentally to deal with each application on its merits.
It would normally involve some sort of preliminary process. So once all the parties are properly informed and engaged, the likelihood is the Commission will convene a preliminary conference to start to deal with the matter and in particular to make arrangements as to what’s going to happen whilst the application is dealt with by the Commission. There are sensitivities in the workplace, of course, when an application like this is made. And so the first reference point is often to work out how parties are going to treat each other and what arrangements are going to be in place while we do that.
In the normal course, we would generally try and get the matter resolved through conciliation because there are a lot of advantages to that rather than having arbitral proceedings that operate. But ultimately, again, as Rebecca points out, if the matter is not able to be resolved and assuming the Commission has jurisdiction to deal with it, then ultimately the Commission makes the decision as to whether or not there is workplace bullying. If it’s found that there is and there’s a future risk of that occurring, then it’s able to make orders to stop the workplace bullying in the future.
Given that the Commission doesn’t have an investigative role, and there are often these initial private conferences, can you give us an insight, Commissioner, into what generally happens in these private conferences?
Sure. Now, look, obviously it would depend on whether we’re talking about a conciliation process or a determinative process, but I’ll briefly canvas both. So look, if it’s a conciliation process, then the likelihood is it’s going to be conducted in private conference, generally in person. Sometimes it’ll be conducted on the phone. I mean, that’s not ideal, but sometimes the parties and/or the representatives are located in completely different places. What is important about these matters is that we deal with them quickly. So look, in that context, sometimes it’s by phone, but generally in person.
So they’ll be informal. Look, the key process will be for the Commission to work with the parties, to get them to understand the different perspectives. Look, it’s not necessary, in fact it’s seldom that the parties will agree how their conduct should be treated and whether or not it is or isn’t workplace bullying. But what’s important is to get an understanding about how other people have perceived the conduct. And secondly, and much more importantly in reality, it is to focus on what the future conduct is going to be.
So there are a reasonable number of settlements in this jurisdiction and that is because it is solely a preventative jurisdiction. And so as soon as it is appropriate to do so, we quickly move in these conferences to focusing the party’s attention on what the future is going to be. In other words, Irrespective of whether or not it can be agreed how we’ve reached this point, how are we going to conduct ourselves in the future? If an issue arises that might’ve caused what’s said to be the bullying context, then how would we deal with that in a way that doesn’t lead to either that reality or the perception?
So look, the Commission will use sort of mediation and conciliation skills and largely informally work with the parties to come up with results. If it’s a determinative process then, look, it’ll have slightly more formality, but it will be largely done in an inquisitorial manner. In other words, the Commission will work with the parties and the parties will generally give sworn evidence, so the Commission can make findings of fact. Determinative processes like that may well be done in a hearing room. They can be done in a conference room, but because there’s evidence involved, they are often done in a hearing room.
Again, it’s a question of finding sufficient evidence, so the Commission can make findings of fact as to whether or not what did occur and whether or not what occurred was bullying conduct. Is there a future risk? And if so, what the orders might be. So importantly, in both of these respects, the Commission generally operates quickly. And we do that, firstly, because we have a statutory objective to do so. And secondly, we’re aware that having matters like this left unresolved, having applications like this left open in the workplace, is not a good thing. It’s not a good thing for the employer, it’s not a good thing for the applicant, and it’s certainly not a good thing for the persons that are named in the application. So we try and move through these processes as quickly as we can.
So these anti-bullying laws have been in effect since 2014. I understand that there are around 700 applications per year. Correct me if that figure’s changed, Commissioner.
It’s a bit low. So between 700 and 800, and more recent years have been closer to 800, but yeah.
Okay. But a high number of these, in any case, seem to be either settled or withdrawn without a decision being made. Do you think this impacts the effectiveness of the jurisdiction at all or says something to that point?
Well, look, it does say something about the jurisdiction, but not necessarily about the effectiveness of it. The reason I say that is this, firstly, I don’t think it’s appropriate to judge the success or otherwise of the jurisdiction from the orders. Certainly, it’s not appropriate to judge the nature of the applications by those that come out the other end with an order being made because, for reasons which we’ve already discussed, the majority of applications are either resolved or are discontinued. So it’s a small minority of matters that are ultimately determined and they’re not actually all that typical of those that come in the front door.
Secondly, a common experience in the jurisdiction is that once an application has been made, and as Rebecca pointed out, the respondent parties are invited to provide a response. Sometimes, in fact, this is quite a common experience, is that the applicant, once they get the response will say, “Well, now that the employer is aware of the concerns,” and if the response is a constructive one and it indicates that the matters will be investigated or something will be done about it, often an applicant will be happy to walk away from their application because what they communicate is all they wanted was for the employer to be aware of it and the person’s name to be aware of the applicant’s perception and for something to be done, for the matter to be taken seriously and to be investigated.
So there are a reasonable number of matters that fall out at that stage. They’re not resolutions, they’re just the applicants that decide with the process. Now, from my perspective, at least that’s actually a really good outcome because that happens quickly and without the Commission sort of playing a major role and having a major impact on the workplace. Secondly, there are a reasonable number of settlements. So about 40% of applications are actually formally resolved. And of course, the majority of those are actually the sort of arrangements I spoke about earlier in terms of saying, “Well, look, how are we going to conduct ourselves in the future? How are we going to deal with issues as they arise to make sure that no one feels that they’re unsafe in the workplace?” Now, that includes the applicant as well as the persons named in the application.
I think it’s also fair to say that the fact that the applications can be brought and there’s a relatively low bar to access for reasons that Rebecca has outlined, the fact that that is the case is well-known in the Australian community and it was pretty clear that in the lead up to the operation of the laws in 2014, and since then the business community, and indeed many HR practitioners, have been well and truly engaged in putting in place appropriate arrangements of policy, training, guidance, grievance processes, education more generally for the workforce. And I’m sure that, in a sense, the secondary effect of the jurisdiction has been significant.
If your listeners are interested in following that up, the then known as the Department of Employment did a post implementation review, which was published in early 2017, which sort of reviewed the policy parameters and the likely impact of the jurisdiction. If you Google for that, no doubt you’ll find it. That might be of interest if your listeners wanted further information about the impact of the laws.
Yes, we’ll definitely add a link to that in the show notes for this podcast. For those matters that aren’t withdrawn or resolved and settled, what kind of orders or what types of orders are actually made by the Commission?
All right. Well, look, in general terms, and bear in mind that if an order is made, it’s capable of being enforced by the federal court, so what we don’t do is issue an order to say, “Look, you should all behave and treat each other well,” or, “You should all behave like adults.” We obviously don’t do that because that’s not the sort of thing that’s enforceable. So, because they have to be objectively enforceable, the orders are made that parties will either do something or not do something.
So for instance, if it’s to do with the institutional framework, establish a policy review or policy train, train the managers or employees about the requirements. If it’s to do with things, which is often the case, sort of lack of role clarity, it might be about, revise the position descriptions and clarify what is or isn’t expected of the role and how that role interrelates with others in the workplace. Or it might be if the behavior is sort of extreme or easily defined, it might be, “don’t do that.” In other words, “don’t implement horseplay, don’t play pranks on each other. Don’t swear and yell at each other as a means of communication.” Now those last ones are relatively rare because the workplace bullying matters we deal with tend to be more systematic than individual behavior, but nevertheless orders can, and are at times made dealing with those sort of matters as well.
Rebecca, what should an HR practitioner do to handle a bullying complaint that’s been made internally, perhaps before any stop bullying application has been made?
That’s a really good time to deal with bullying, before any sort of application has been made. The first thing I’d recommend is probably having some good policies in place, so ideally you’ve done this before any bullying in the workplace has occurred. If you have those policies in place, it’s wise to follow them. I would say just in terms of general advice, most people want to feel heard, so listening to a complainant is always important. I would also recommend, especially in light the new jurisdiction, but also just more generally to make a nice workplace, that employers should do a realistic assessment of what they can do to assist the complainant. If they can do something realistically, then they should follow through with that assistance. That will just probably be best for everyone in the workplace.
Okay. What about once a formal application to the Fair Work Commission has been made, Rebecca? Are there other actions that you think constitute best practice for an employer in dealing with a stop bullying application?
Yeah, James, absolutely. As we’ve all discussed, most of these matters resolve at the conciliation phase. And so I think the best way to get to that resolution is the employer doing everything in their power to be reasonable and to perhaps even do some of the things that have been requested of them in the application. So in the application, the applicant who is alleging that they have been bullied, writes down what they want as a result of their application, and often the things that are written down are achievable.
So for example, they might ask to be moved to a desk away from their perceived bully, or they might ask to report to a different manager. They might ask for staff to receive sensitivity training, all of these things. If these things are achievable by the employer, I would recommend that they do it. If you do those things before the conciliation, I think it’s highly likely that you’re going to settle the matter at the conciliation without having to go through the pain and potential public embarrassment of moving further into a hearing. I think that’s probably the best thing that an employer could do and that’s always my advice.
Commissioner, anything to add to Rebecca’s advice there?
No, look, I think Rebecca’s right on the ball with that. The only other thing I would add is that it would be clear from what we’ve already discussed is that part of the process, because we’re a tribunal dealing with an application, is that the application will be served on the employer or the principal in a contractual relationship, but also on the persons named. So there are some strategies that an employer or a HR practitioner might consider to make sure that the persons named in the application are aware that the application is coming. Now they will, in almost all cases, be contacted by the Commission as well. But bearing in mind that it’s the employer that has to manage the relationships while the process is underway, taking some steps to inform the person named and ensure that they have some support as well is important.
But equally, the tone of the response that the employer is able to make to the stop bullying application is actually really important as well. That tone will set the tone of the proceedings to follow, as Rebecca has indicated. So for instance, if an application is made, most often at least, it occurs that the applicant is claiming that they’ve been bullied by someone else in the workplace. In other words, it’s an application which effectively involves two or more workers who work for and are managed by the business. In that context, it isn’t necessary for the employer to declare a view about whether they think there’s workplace bullying or not. They don’t, and it’s not very common that they do accept that it’s occurred, but that does happen.
But if the tone of the response is legally very assertive and it is very dismissive, then it will set the tone for the whole application. And bearing in mind, it is amongst other matters, a dispute between two employees at the same business often, if the response is more open and indicating that it is willing to work with the applicant and with the persons named in order to get the matter resolved, then it does set the tone for the proceedings to follow and might be a really good investment in managing the process as well as they can, at least from the business’ perspective.
Well, thanks very much to both of you for sharing your time and giving our listeners an insight into how stop bullying orders work.
Thank you, James. It’s been a pleasure.
Thank you, James.
You’ve been listening to the HR Breakfast Club podcast with me, James Judge. You can find us online at hrbreakfastclub.com.au. If you have ideas for future topics you’d like us to explore or have questions about today’s content, you can do that via the website or call us directly on 02-6274-0880. Feel free to subscribe, review the show on whatever platform you’re listening on, and share it with anyone you feel might get some value from the discussion.