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Should startups be worried about workplace bullying?

Workplace bullying – yes, you do need to do something about it

Proposed changes to the Fair Work Act will give the Fair Work Commission expanded powers to deal with complaints made by employees who feel bullied. Instead of there being the normal “adversarial” approach, where both sides go away and get lawyers and present alternative arguments to the adjudicator who makes a decision on what is to happen next, the Fair Work Commissioner who is appointed to each complaint will take an active role in investigating what happened for themselves, and if satisfied there is a need to, will make a stop bullying order.

This has wide-ranging implications for people in business – especially start-ups who may be thinking “I only have a small handful of employees / contractors / interns, bullying just wont happen in my business”.

To understand why businesses need to think again, it is important to take a “big picture” view of what a stop bullying order means for an employer. Firstly, you will have been found to be implicit, at least in a vicarious (that is, being responsible for the actions of your employees) and possibly negligent (in not jumping in and stopping it before the employee went to the Fair Work Commission) sense. This could be then investigated by Work Cover (even if there is no actual injury suffered by the complainant, the fact of the bullying may be enough to trigger the investigation as it could have caused harm), or used as the basis for a claim by the employee against the business owner for failing to ensure their safety, or any number of other grounds to which a “rubber stamp” from the Fair Work Commission that there has been dodgy conduct that you are responsible for will be useful.

In addition to the possible consequences down the track, the actual participation in the formal process whilst the Commissioner makes their own enquiries into what happened will cost you at least the time and energy that you could be working on making money (opportunity cost) – and likely some real money too, if you want a lawyer to hold your hand through the process. What shape the process might take is a mystery until it happens, as there is no “step by step” formulae that other more mainstream processes must follow (like unfair dismissal or adverse action). It may be that you end up in a full hearing, or needing to attend a conference, and this is daunting for most. It could be that you get a call from the Commissioner who wants to look at all of your documentation – and whether you actually have any of the “right stuff” there to give them can be a cringe-creating experience.

What we do know, is that where an application is made for the Fair Work Commission to look into a bullying claim, then the relevant Commissioner will come knocking in some form – and will want to see what sort of ship you are running. The better your employment governance, the better your future prospects of defending any subsequent claims based on any failure to stop the bullying behaviour in the first place, and the smoother the actual process will be. Better yet, if you actually walk the talk, the chances of you being caught up in a bullying claim are greatly reduced – and definitely worth the effort.

Things that will go a long way to reducing your risk / smoothing the process include:

  • Any policies on workplace behaviour / anti-bullying / inclusion
  • Your training regime – how induction / management / maintenance training programs spread the good word about anti-bullying
  • Actions that have been taken with respect to the matter complained of AND any other examples that you can provide to show that you are a good “industrial citizen”

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