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Bullying is a Serious Issue in Australian Workplaces

It is unreasonable, unwelcomed and repeat conduct/behaviour causing a risk to workplace health and safety. It conduct/behaviour that a reasonable person would consider that intimidates, coerces, threatens and/or humiliates a person. The conduct can be direct (overt) or indirect (covert).

In Australia, workplace bullying is prohibited under the Fair Work Act 2009 and Work Health and Safety legislation. If a person makes a complaint against another or the employer, the employer must not take adverse action in relation to the complaint.

Sexual Harassment occurs when a person makes unwelcomed sexual advances, request for sexual favours, remarks with sexual connotations or other unwelcomed conduct of a sexual nature.  Sexual harassment is a workplace risk to health and safety and employer must eliminate or manage these risks under work health and safety legislation.

FAQs

What do I do if I believe I am being bullied or sexually harassed?

It is important that a person who believes they are being bullied bring this to the attention of their employer, human resources, the CEO or the board. The person can seek legal assistance if they are unsure how to make the complaint or do not believe their complaint will be taken seriously.

Can I make a bullying complaint or sexual harassment complaint to the Fair Work Commission?

Yes. You can make a complaint to the Fair Work Commission to deal with issues of bullying in the workplace or sexual harassment in the workplace.  The Commission will want to know if the complaint has been made to the employer and dealt with in accordance with the employer’s policies.  If not, the Commission can encourage the parties to use the internal complaint mechanisms first and in an expeditious manner.

How does the Fair Work Commission deal with a bullying or sexual harassment complaint?

The complaint will be reviewed by the Commission to determine if it falls within the provisions of the Act, it will conduct a mediation/conciliation conference with the parties, and if considered necessary it will conduct an arbitration hearing to determine the matter.

If a dispute is lodged with FWC it will follow the same process to seek to resolve the dispute. If it is not resolved the parties can elect to have the FWC arbitrate or seek orders from a Federal Court including compensation.

What is not bullying?

Reasonable management action is not bullying and harassment. This includes reasonable action to transfer, demote, discipline, redeploy, retrench or dismiss an employee.

What are the outcomes in the Fair Work Commission?

The Commission is empowered to make orders to ensure the workplace is safe. Before the Commission makes an order it must find there has been bullying or sexual harassment and there is a likelihood it will continue (so this generally excludes employees who are no longer employed). The Commission is not empowered to make orders for compensation. The orders in can make include orders to stop bullying or sexual harassment, compliance with policies, provision of training and support or orders for separation of employees and non-contact orders.

If a dispute in relation to sexual harassment and the FWC is empowered to arbitrate the matter then it can make compensation orders as well as stop sexual harassment orders. If the parties do not consent to the FWC arbitrating then the applicant can commence Federal Court proceedings for compensation, injunction and penalties.

What rights do employees have in relation to sexual harassment?

Employees can elect to go through the Australian Human Rights Commission (AHRC) or FWC in relation to allegations of sexual harassment (subject to eligibility). The parties with the assistance of the AHRC or FWC seek to resolve the complaint. This can include compensation, apologises, stop sexual harassment orders or changes to the workplace.

When can I commence Court proceedings?

If your complaint was lodged with the AHRC, you have 60 days from the termination notice to lodge proceedings in a Federal Court to seek compensation or other orders.

If you lodged a dispute in the FWC and it could not be resolved by mediation/conciliation you have 60 days from the date of the certificate of the FWC to apply for the FWC to arbitrate the matter by consent and otherwise to commence proceedings in a Federal Court for compensation, injunction or penalties.

A Federal Court has power to order compensation or other workplace orders to stop the conduct.

Where proceedings are commenced from a termination notice in the AHRC parties are exposed to costs orders if unsuccessful. If proceedings are commenced via the FWC process each party is liable for their own costs (subjection to the provisions in section 570(2) of the Fair Work Act).

What other rights to I have in relation to bullying and sexual harassment?

The Fair Work Act provides protection from adverse action if you are dismissed, injured or discriminated because you make a bullying or sexual harassment complaint or because you have the right to make a compliant.  Finally, there are rights under Work, Health and Safety legislation to seek compensation for any discriminatory conduct by a person in raising concerns of bullying or sexual harassment under WHS legislation. Employees should also consider if they are entitled to compensation under Worker Compensation and personal injury laws in each state or territory.

What should employers do?

Employers must ensure that they have a workplace free (as far as reasonably practicable) from risks to health and safety.  It is therefore imperative that employers do workplace risk assessments regularly to eliminate or minimise risks (and bring any risks to the employee’s attention).

With respect to bullying and sexual harassment employers must have a bullying and sexual harassment policy and a code of conduct. The polices must set out what is considered bullying or sexual harassment, how employees can make complaints about bullying or sexual harassment and how a complaint will be handled (confidentially).  The outcomes of investigations should clearly be set out in the policy whether against the perpetrator or in response to false complaints. The employees should be regularly trained as to their rights and obligations under WHS laws and the bullying and sexual harassment policies.

At Burke Mangan Lawyers we bring many years of experience and understanding of the Fair Work Act to successfully protect the interests of employers and employees in relation to bullying and sexual harassment. We have a proven track record to obtain you the right outcome.

Connect with us today and take the first step towards your peace of mind.

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