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Unfair Dismissal and Bullying

The Fair Work Commission Anti-Bullying Jurisdiction: Has the Fair Work Commission Stopped the Bullies?

Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”), the Fair Work Commission (“Commission”) has the power to make a ‘stop bulling order’ when a worker has been bullied at work, unless the alleged bullying conduct amounts to “reasonable management action” carried out in a “reasonable manner”. This jurisdiction, which commenced on 1 January 2014 with widespread community support and in particular from the Commonwealth government, has been in operation for over 4 years, and in this time, it has had much lower rates of utilisation than expected. Evidently, much the same can be said for the success rates of those who have pursued a bullying application through the Commission.

To this end, the Commission’s quarterly report for the October-December 2017 quarter, shows that 149 applications were made. However, all but 12 of these were withdrawn or resolved prior to going to final determination and of the 12, all were dismissed and only 1 anti-bullying order was made. It is much the same story for the first quarter of 2018, with 186 applications made, but only 12 reaching final determination, and again all, but one, were dismissed.

The Bullying Jurisdiction  

Before examining this area of the employment relations system more closely, it is important to understand the parameters of the anti-bullying jurisdiction and how it operates. In broad terms, to eradicate bullying in the workplace, the Commission has power under the Act to make any order which it considers appropriate to prevent a worker (who must be employed) from being bullied. The Commission does not have the power to make compensatory orders (payment of a monetary amount).

In order to obtain such relief, an applicant must demonstrate that that they were subjected to repeatedly unreasonable behaviour by an individual (or group of individuals) in the workplace and that the behaviour creates a risk to health and safety. It is also a requirement that the worker is employed, and that the alleged conduct not relate to past instances of alleged bullying as the Commission has no power to exercise its discretion retrospectively. This was affirmed in Shaw v ANZ [2014] FWC 3408 where the Commission declined to make a stop bullying order after Mr Shaw’s employment was terminated on the basis that there was no conceivable risk that the bullying would continue.

The ability of employers to defend bullying claims depends, in large part, on whether the alleged conduct can be properly characterised as “reasonable management action carried out in a reasonable manner”, which falls outside the scope of the Act. In this regard, providing constructive criticism in the context of a performance appraisal to address an underperformance issue will not necessarily constitute bullying provided the feedback is given in a reasonable way. The Commission has observed that reasonable management action need not be “perfect” in order to be considered reasonable, but it ought to be rationale and defensible. Importantly, in the recent decision of Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174, the Full Bench confirmed that the test of unreasonableness is judged objectively on the management action itself, rather than the workers’ perception of the relevant action.

The real strength of the jurisdiction is the breadth of order that can be made, and the Commission appears to be embracing this latitude. In circumstances where an applicant can demonstrate bullying and show that the conduct creates a risk to health and safety, the Act is silent as to the orders by which the Commission can address the improper behaviour. In this respect, the Commission has significant latitude in terms of dealing with anti-bullying actions and, to some extent, is not legislatively constrained from imposing creative or non-traditional solutions to prevent bullying from occurring in the workplace, including barring certain individuals from having contact with an applicant. For example, in Ari Kypuros [2017] FWC 3082, Commissioner Wilson issued an interim anti-bullying order restraining the co-owner of a tyre business and his employed nephew from communicating with or being within 10 metres of each other, noting that a separate court order for the nephew not to commit “family violence” against his uncle had done little to improve a long-standing combative workplace relationship. Similarly, in Lynette Bayly [2017] FWC 1886, the Commission granted an interim order which effectively acted as an injunction upon her employer from proceeding with a workplace investigation, which may have resulted in termination. In this regard, the Commission observed that it was appropriate in this particular circumstance to order interim relief as the employee concerned would be deprived of the ability to access the bullying jurisdiction once her employment had been terminated, and there was a real likelihood this would occur if the investigation was allowed to proceed.

Interestingly, the ambit of the bullying jurisdiction has, again, been redefined by the recent decision of McCutcheon v Fine Wine Wholesalers Pty Ltd [2018] FWC 3814 (“McCutcheon”). In McCutcheon, Deputy President Beaumont observed that the relationship and level of familiarity between colleagues may be a relevant consideration in determining whether, in fact, behaviour amounts to bullying.

In McCutcheon, the Managing Director, Ms Lawrence, and the Area Manager, Ms McCutcheon, formed a relationship, which Deputy President Beaumont noted, surpassed the ordinary limits to which co-workers themselves become acquainted. As such, the Commission established that there was a blurring of the line between the traditional relationship in place between a leader and a subordinate and was more in the nature of a relationship formed between friends.

In this regard, Ms McCutcheon claimed that Ms Lawrence’s actions, which included the following examples of alleged bullying:

  1. The spreading of untrue malicious and humiliating rumours in front of the sales team regarding her boyfriend and remarks about her appearance due to an allergic relationship, and when she “wore too much makeup” and looked like “Coco the Clown”;
  2. Advising staff to wear low cut tops to increase sales revenue;
  3. Informing Ms McCutcheon that she could not afford her wages if she did not achieve sales targets;
  4. Questioning Ms McCutcheon’s sick leave; and
  5. Causing the company’s workers’ compensation insurer not to pay Ms McCutcheon’s related benefits,

in her capacity as Managing Director, amounted to bullying.

In defence of Ms Lawrence’s action, Fine Wine Wholesalers Pty Ltd, disputed the claims. The Commission held that the only conduct that did occur were comments regarding the fact that Ms McCutcheon should be careful her boyfriend does not “break her heart” and that she preferred Ms McCutcheon have a more “natural” look. To the extent that the Commission found the conduct occurred, it found that the level of familiarity between the parties was such that the comments could not be deemed to be unreasonable behaviour constituting bullying within the meaning of the Act. In other examples where performance was an issue, the Commission relied on the legal authorities that held that “some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.”

Nevertheless, despite finding that the conduct did not amount to bullying, the Commission stressed that being well acquainted with someone in the workplace did not excuse inappropriate or unsafe conduct.

The cases that have been decided by the Commission in this jurisdiction indicate that it is difficult to predict an outcome but more often than not, final bullying orders are not made. The real issue for most employers is the costs involved in a claim and the fact that the Commission does have wide powers to make orders which may significantly affect the manner in which the employer continues to engage with its staff.

Lessons for Employers

There are a number of steps that employers can take to ensure they are prepared to adequately address bullying claims in the workplace, and to minimise their exposure to these types of claims, including:

  1. ensuring that workplace conduct policies and anti-bullying policies are in place and are regularly reviewed and updated;
  2. providing training workshops to both employees and managers in relation to appropriate standards of behaviour at work;
  3. conducting thorough reference checks when selecting line managers to ensure they are experienced in managing interpersonal conflicts;
  4. managing workplace behaviour proactively and treating every complaint of bullying seriously; and
  5. acting in compliance with policies and procedures when a bullying complaint is received irrespective of against whom the grievance is made.

Neglecting the issue of workplace bullying may, and in most circumstances, will inevitably make matters worse, which brings the prospect of an imposed solution by the Commission, rather than one that can be agreed between an employer and employee. In this regard, bullying claims, by their very nature, are inherently risky for employers from a reputational perspective. This is all the more reason to quickly and effectively address bullying before facing a potentially public hearing where the organisation’s ‘dirty laundry’ will be on display for the world to see.

If you are aware of a bullying issue in your workplace or wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

“Sticks and Stones”: The Fair Work Commission Anti-Bullying Jurisdiction

Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”) the Fair Work Commission (“Commission”) has the power to make a “stop bulling order” when a worker has been bullied at work, unless the alleged bullying conduct amounts to “reasonable management action” carried out in a “reasonable manner”.

Despite being welcomed for providing greater legislative protection to workers against inappropriate workplace behaviour, the anti-bullying jurisdiction which commenced on 1 January 2014 has had much lower rates of utilisation that expected. The Commission has however delivered some key decisions which provide some clarification around its scope to address and remedy workplace bullying.

Before examining judicial developments in this area, it is important to understand the parameters of the anti-bullying jurisdiction and how it operates. Notably, the Commission can make any order that it considers appropriate to prevent a worker being bullied at work, other than compensatory orders (payment of a pecuniary amount) or an order reinstating an employee.

In order to obtain such relief, an applicant must demonstrate that that were subjected to repeatedly unreasonable behaviour by an individual or group of individuals in the workplace, and that the behaviour creates a risk to health and safety. It is also a requirement that the worker is employed and that the alleged behaviour not relate to past instances of alleged bullying. The Commission has no power to exercise its discretion retrospectively. For example, in Shaw v ANZ [2014] FWC 3408 the Commission determined that it had no jurisdiction to hear the matter and make any orders as Mr Shaw’s employment had been terminated.

The ability of employers to defend bullying claims depends in large part on whether the alleged conduct can be properly characterised as “reasonable management action carried out in a reasonable manner”. If this is the case, the conduct falls outside the scope of the anti-bullying provisions in the Act. For example, providing constructive criticism in the context of a performance appraisal, to address an underperformance issue, will not necessarily constitute bullying. However, the feedback must be given in a reasonable way. The Commission has observed that “reasonable management action” need not be perfect in order to be considered reasonable, but it ought to be rationale and defensible. Importantly, in SB [2014] FWC 2104, Commissioner Hampton confirmed that the test of unreasonableness is judged on the management action itself, rather than the workers’ perception of the action.

In circumstances where an applicant can make good allegations of bullying and show that the conduct creates a risk to health and safety, the Act is silent as to the orders by which the Commission can address the improper behaviour. In this respect, the Commission has significant latitude in terms of dealing with anti-bullying actions and, to some extent, is not legislatively constrained in its ability to impose creative solutions to prevent bullying from occurring in the workplace, including barring certain individuals from having unaccompanied contact with an applicant. Some of the orders that the Commission is able to make include:

  • directing the employer to ensure the bully not correspond with the applicant;
  • directing employees to commence or finish work at different times;
  • directing employees not to make comments to affected employees;
  • directing the employer to create or amend policies; and
  • directing an employer to conduct training.

In the recent decision of L.P [2016] FWC 763, Commissioner Hampton refused to issue an anti-bullying order against a well-known Adelaide restaurant because it implemented positive measures to tackle inappropriate workplace behaviour. In what might be an important development for this jurisdiction, however, Commissioner Hampton considered the possibility of the Commission restoring leave balances of workers who take time off due to workplace bullying. Although the question was left unanswered, Commissioner Hampton noted that the possibility of re-crediting leave would need be fully considered in the context of the Act and the National Employment Standards. As the argument was not agitated in these proceedings, it was found that it was not necessarily to decide the issue.

There are a number of steps that employers can take to ensure they are prepared to adequately address bullying claims in the workplace, and to minimise their exposure to these types of claims, including:

  1. ensuring that workplace conduct policies are in place and are regularly audited and updated;
  2. providing training workshops to both employees and managers in relation to appropriate standards of behaviour at work;
  3. conducting thorough reference checks when selecting line managers to ensure they are experienced in managing interpersonal conflicts;
  4. ensuring that line managers are appropriately trained in managing performance issues;
  5. managing workplace behaviour proactively and treating every complaint of bullying seriously; and
  6. acting in compliance with policies and procedures when a bullying complaint is received irrespective of whom the grievance is against.

Bullying claims, by their very nature, are inherently risky for employers. However, of far more concern is the ability for affected employees to commence proceedings for breach of contract, negligence or breach of work health and safety obligations, as a result of the employer failing to provide a safe system and place of work. Damage to an employer’s reputation is also a significant risk. We suggest that employers conduct an audit of their workplace culture and practices regularly to ensure that any instances of bullying, harassment or other inappropriate workplace behaviours are identified and appropriately eliminated.

If you are aware of a bullying issue in your workplace or wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

Unfair Dismissal: Avoiding a “Cash Grab” in the Fair Work Commission

In the last few weeks we have appeared in numerous unfair dismissal matters. The level of activity in this jurisdiction is not unusual given that in the period between October to December 2015 the Fair Work Commission (“Commission”) received a total of 3636 unfair dismissal applications. Why is this jurisdiction so popular? It may be due to the fact that 49% of all conciliations settle by way of a monetary payment to the employee within the range of $2,000 to $4,000, and 79% for a payment of less than $8,000. As is often the case, such payments are made because an employer wishes to make the problem “go away”, which can be extremely dissatisfying in circumstances where an employee has followed the appropriate termination procedures and best practices.

The unfair dismissal laws under the Fair Work Act 2009 (Cth) (“Act”) are premised on the notion of a “fair go all round” and are designed to prevent dismissals that:

  1. are “harsh, unjust or unreasonable”;
  2. are procedurally defective;
  3. do not comply with the Small Business Fair Dismissal Code (in the case of an employer who employs less than 15 employees); and
  4. are not cases of genuine redundancy.

Under the Act, a dismissal takes place where an employee is terminated at the initiative of their employer, or where the conduct, or a pattern of conduct, forced the employee to resign – otherwise, known as a constructive dismissal.

Termination of employment signifies the end of the relationship between an employer and employee except to the extent that the parties owe surviving obligations to one another. When an unfair dismissal application is validly made to the Commission within 21 days of the date of termination, an employee is essentially asking the Commission to assess whether the surrounding circumstances of the dismissal, and the dismissal itself, was underscored with some kind of unfairness, injustice or unreasonableness. The inquiry undertaken by the Commission is two-fold:

  1. did the employer have a valid reason for the dismissal; and
  2. was the dismissal procedurally flawed in some way.

However, before the Commission can determine the merits of an unfair dismissal action, a number of preliminary matters are considered as to whether the Commission has the jurisdiction to hear and determine the matter. Those considerations include an assessment of whether:

  1. the unfair dismissal application was made within the correct period required under the Act (minimum employment period of 6 months);
  2. the employee is able to commence proceedings because they were covered by a modern award or enterprise bargaining agreement;
  3. the employee was remunerated in excess of the unfair dismissal income cap (set at $136,700 for 2015) and is not covered by a modern award or enterprise agreement;
  4. if a small business, the dismissal was consistent with the unfair dismissal code for small business;
  5. the dismissal was a case of genuine redundancy; and
  6. the employee is excluded from making an unfair dismissal application because:
        • the employee was under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment was terminated at the end of the period, the completion of the task, or at the end of the season;
      • the person was an employee to whom a training arrangement applied, and the employment was terminated at the end of the training arrangement;
      • the person was a casual employee without ‘regular and systematic’ employment and an expected that they would be employed on a ‘regular and systematic’ basis;
      • the person was dismissed for ‘serious misconduct’;
      • the employee has not completed the relevant minimum period of employment; or
      • the person was an independent contractor.

Assuming that none of the above jurisdictional issues are raised by an employer, and the matter does not resolve by telephone conciliation in the first instance, the Commission will then arbitrate the matter with a view to examining the termination based on the following criteria:

  1. whether there was a valid reason for the termination related to the employee’s capacity, performance or conduct (including its effect on the welfare and safety of other employees);
  2. whether the employee was notified of the reason(s) for termination;
  3. whether the employee was given an opportunity to respond to any reason related to their capacity, performance or conduct;
  4. any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal; and
  5. if the termination related to unsatisfactory performance by the employee — whether the employee had been warned about that unsatisfactory performance before the dismissal and given an opportunity to improve;
  6. if the termination related to unsatisfactory performance by the employee – whether the employee was told a failure to improve could result in termination;
  7. the degree to which the size of the employer’s business would be likely to impact on the procedures followed in effecting the dismissal; and
  8. the degree to which the absence of dedicated human resources personnel would be likely to impact on the procedures followed in effecting the dismissal; and
  9. any other matters that the Fair Work Commission considers relevant.

The Commission ultimately exercises its discretion in carefully weighing up each matter above before forming a view, based on the evidence, as to whether the employee was unfairly, harshly or unreasonably dismissed. Inherently, the decision may result in a finding that the termination was harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. The findings of the Commissioners deciding these matters are often quite subjective and vary greatly. It is therefore often difficult to predict an outcome.

Given reinstatement is the primary remedy, where the Commission is satisfied that a person was unfairly dismissed, it will look at whether it is appropriate to reinstate the employee to their employment. In many cases, this does not occur due to an insurmountable breakdown in the employment relationship. As such, other available remedies, principally compensation orders are generally awarded. It is worthy to note that the maximum compensation that can be awarded by the Commission in the unfair dismissal jurisdiction is capped at the lesser of:

  1. half the amount of the high income threshold; or
  2. the total amount of remuneration received by the employee (or to which they were entitled) during the 26 weeks immediately before the dismissal.

However, it is generally quite rare for orders in excess of 6 months to be made, and usually such orders for maximum compensation are made in only the most grievous circumstances. This is not widely understood by both applicants or the employer, and the costs of running the proceedings to a hearing far outweigh any compensation order made.

In the recent decision of Cole v PQ Australia [2016] FWC 1166 (“Cole”), the Commission ordered compensation against the employer after it was established that a bullied employee was forced to resign after refusing to comply with an unreasonable request to be examined by a company-nominated medical practitioner. In Cole, the Commission heard evidence that the employee was subject to a barrage of emails, calls, text messages and covertly recorded conversations from his employer, who also failed to act after the employee raised complaints about a number of bullying incidents, including the erection of a noose over his workstation.

After providing his employer with a certified medical certificate in June 2015 for depression, the employee was suspended on pay on the basis that his employer was concerned about his welfare. Then, after the end of the stand-down period, the employee was directed not to return to work until he saw the company’s nominated doctor. By email, the employee was summarily dismissed for failing to attend the doctor’s appointment and purportedly not complying with a lawful direction.

The employee was subsequently informed that the company would pay him notice plus his statutory leave entitlements if he tendered a resignation letter, to which he declined. The Commission found that suspending the employee created considerable uncertainty and anxiety. Further, it was held that directing the employee to undergo a medical examination with the company doctor was unreasonable and part of a disciplinary process which the employee had no opportunity to respond. Based on the employee’s four years of service, job history and the circumstances of the dismissal, Commissioner Roe ordered the employer to pay compensation amounting to $43,900.00 to the employee, but considered reinstatement to be an inappropriate remedy.

As is evidenced by Cole, the unfair dismissal jurisdiction can nonetheless be an incredibly powerful and effective forum for a dismissed worker, particularly where the nature of the termination is comprised by one or more elements of unfairness, harshness or unreasonableness.

To reduce the degree of risk and exposure applicable to the unfair dismissal jurisdiction, it is critical to bear in mind the best practice procedures for handling terminations, including:

  1. being familiar with and applying workplace policies and other industrial instruments such as an enterprise agreement, HR manual or Codes of Conduct correctly;
  2. ensuring that the employee is told in specific language the issues and concerns with their employment, preferably in writing, and that a failure to improve may result in termination;
  3. that the employee is given clear guidance and direction to improve conduct and unsatisfactory performance to the expected standard – in other words, the issues are discussed;
  4. the employer acts reasonably and in good faith toward the employee;
  5. that adequate training and resources are made available to the employee to support improvement;
  6. if an employee’s job is at risk, that they are informed of that matter and given warnings;
  7. if a serious conduct issue comes to light, that the employee is given a reasonable opportunity to respond prior to any final decision being made;
  8. the employee is given the opportunity to bring a support person to any disciplinary process; and
  9. the employee is generally given ‘a fair go all round’.

Even though an apparently sound termination process has been followed, the risk of unfair dismissal is sometimes beyond an employer’s control. However, we do not suggest that “rolling over” is an optimal method for dealing with unfair dismissal claims. In addition, if a robust approach has been adopted, the unfair dismissal claim can be defended and often resolves at the telephone conciliation or the employee withdraws the claim thereafter. To avoid being seen as a “soft touch” – we suggest that defending the occasional unfair dismissal matter can have an important demonstration effect on the workforce.

If you have been dismissed, or have received an unfair dismissal claim, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

Anti-Bullying – What it means for Employers

The New Anti-Bullying Regime – What it means for Employers

palace_310x409The Fair Work Act’s new anti-bullying regime has now been in operation for just over 4 months. It was feared that there would be a deluge of claims to the Fair Work Commission (“Commission”), however this has not been the case. In the first 3 months of operation, there have been only 151 applications. The Commission’s report published last month, indicates that it finalized only 8 of those complaints and only issued orders on 1 occasion. Does this mean the jurisdiction has no teeth and is not as useful as initially anticipated in preventing bullying in the workplace?

In the two most significant decisions, the Commission has shown that it can have significant impact on the manner in which employers deal with these issues. Senior Deputy President Drake, in the Applicant v Respondent PR548852 (21 March 2114), made some far reaching orders that will affect the manner in which the employer now conducts its business. SDP Drake ordered that the employee, the subject of the bullying application must have no contact with the Applicant employee alone, cannot send emails or texts to the Applicant employee, cannot raise any work issues without notifying the COO or his subordinate beforehand, and that the employee and Applicant effectively have no contact with one another. These orders were not time limited. That is to say that they continue to have full effect until they are modified by the Commission. This means they will continue to have full effect possibly years after the decision.

In a decision made on 12 May 2104, the Commission clarified what is meant by “reasonable management action” and also shed some light on the role of external investigations, and their utility. The Applicant complained that she had been bullied by one of her subordinates and the acquiescence of her employer in that conduct. She also complained about the conduct of her manager and the conduct of the Human Resources staff. The Applicant had received 2 bullying complaints against her by 2 subordinates. The claims were accepted by the employer and investigated. Although, the employer concluded that there was no bullying by the Applicant, the Applicant alleged that it took no steps to prevent further complaints from being made, failed to prevent bullying by another employee and did not provided her with adequate support. The Applicant also alleged that the employer did nothing to prevent and protect her from malicious rumours in the workplace.

The Commission needed to determine firstly whether the conduct under examination was in fact behavior that was repeated unreasonable behavior. The Commission stated that what is required is “repeated unreasonable behavior by the individual or individuals towards the Applicant worker”. The Commission recognized that there is no specific number of incidents required for the behavior to represent “repeated”, provided there is more than one occurrence and nor does the same specific behavior need to be repeated.

The behavior needs to create a risk to the health and safety of the applicant. However, reasonable management action carried out in a reasonable manner does not constitute bullying. The commission stated that in determining whether the management action was reasonable and carried out in a reasonable manner requires an objective assessment of the actions in the context of the circumstances and knowledge of those involved at the time. The emotional and psychological health of the worker involved may also be relevant. The Commission stated that the test is whether the action is reasonable, not whether it could have been “more reasonable” or “more acceptable”.

The Commission found that the making of complaint against the Applicant and the investigation of those complaints was not unreasonable. In determining whether the Applicant had been provided appropriate support, the Commission concluded that the manager’s actions should have been more proactive, but were not unreasonable in the circumstances. The Applicant also complained about the manner in which her concerns regarding another employee were investigated. The employer had engaged an independent legal firm to conduct the investigation. The Commission concluded that although in part its conclusions differed from those of the independent investigator, the use of an external investigator and the manner in which the investigation was conducted was not unreasonable. The Commission concluded that the employer’s behavior was not unreasonable in the circumstances, and the limited unreasonable behavior of some of the employees concerned was not sufficient to create a risk to the Applicant’s health and safety.

The decision is useful for a number of reasons. Firstly, it clearly examines what can constitute unreasonable repeated behavior, and although it concluded that the employer’s behaviour was reasonable in the circumstances, it highlights the depth to which an employer’s business practices will be scrutenised by the Commission. Secondly, it recognizes the utility of independent investigations as long as they are carried out in an appropriate and reasonable manner. Lastly, it also an illustration of how the jurisdiction can be used by disgruntled employees who are not happy with the manner in which they are being treated by the employer or fellow employees.

Despite the relatively few cases that have come before the Commission since the introduction of the new bullying regime, the few cases that have been decided indicate that the regime can in fact have far reaching powers and have a real and immediate effect on the workplace. It is clear that the Commission will look closely at the manner in which an employer conducts itself and it internal processes and procedures. Clearly if these are lacking or carried out in an unreasonable manner, there is room for adverse findings. It is also clear that given orders that can be made against any workplace participant including other employees, the employer has an increased duty to ensure its employees behave appropriately.

We suggest that all employers take the following steps to ensure they are best placed to deal with any possible bullying application.

  1. Ensure their anti-discrimination, harassment and bullying policies are up to date
  2. Ensure all workplace participants receive training in appropriate workplace behaviours including bullying
  3. Ensure managerial staff receive training on what is meant by “reasonable management action” in the context of performance management and dealing with staff issues;
  4. Ensure that the company’s grievance resolution procedures are robust and are implemented when complaints are made;
  5. Ensure that human resources staff are appropriately trained in dealing with employee complaints and grievances
  6. Ensure that a proper investigation is conducted in circumstances where material complaints are raised.