In its first month of its new jurisdiction, the Fair Work Commission has received 44 bullying complaints, but the commission’s president says it’s too early to determine the future rate of applications.
There were fears the FWC would be flooded with bullying complaints when it was first given the new powers last year. So far that hasn’t been the case, with 100% of the 44 applications commenced within the 14-day period required by legislation.
“In fact, the commission has commenced to deal with most applications on the day they have been lodged,” a statement from the commission reads.
Since January 1, there have been 28,049 unique hits to the FWC website.
Holding Redlich senior associate Joel Zyngier told SmartCompany there are far more than 44 incidences of workplace bullying taking place andhe expects the FWC will receive more complaints.
“It’s too early to say, but I expect that the number will increase as awareness and understanding of the process grows,” he says.
“It may not be the same number of claims per quarter as we see for unfair dismissals or general protection claims, but as the commission makes law on it people will be ready to use the service.”
Speaking to SmartCompany last year,University of Adelaide law professor Andrew Stewart said a major concern was that the commission would become an outlet “for anyone who is concerned about how they’re being performance managed”.
“The situation is where a performance management process results in an employee feeling like they are being treated unfairly and this can result in them being away from work and then putting in a claim for work induced stress. In some cases this is a genuine reaction, but in other cases it is just a convenient tactic.”
The FWC says each application is assessed at an early stage to determine whether or not it falls into its jurisdiction.
A worker is able to make a complaint if he or she believes they’re being bullied at work by an individual or group and that the behaviour creates a risk to their health and safety.
The president of the FWC, Justice Iain Ross, says while the process is still in its early stages, so far the commission is achieving its goal of engaging with parties early and progressing matters promptly.
“January and February traditionally see a smaller number of lodgements with the commission, particularly in relation to other individual-based rights disputes such as unfair dismissals and general protections,” he says.
“The time of year and the fact that this is a new jurisdiction means that the number of applications received to date is not necessarily indicative of the lodgement trends we will see in future.”
Ross says the commission expects some fluctuation in the application numbers received.
“We will be monitoring the numbers closely, and will provide quarterly reports on our website,” he says.
“We will also publish statistics in relation to our timeliness in dealing with matters, including when we commence to deal with applications and the timeframes to substantively resolve matters.”
Zyngier says employers are likely to be thinking about the issue of workplace bullying more now the FWC is dealing with the complaints, but it shouldn’t be of heightened concern.
“Employers should take that level of interest anyway. Bullying is first and foremost an occupational health and safety problem and safety should be an employer’s motto,” he says.
“Protecting workers from workplace hazards like bullying should be important not just because of having to go to the commission, but the possibility of psychological harm to employees, high staff turnover and lack of productivity in the workplace caused by bullying.”
Zyngier says this is a good opportunity for employers to review their workplace bullying policies and complaints mechanisms.
“Bullying policy must have a clear definition of what is and isn’t bullying… including examples. An effective complaints mechanism should be in place that provides for investigation if necessary and it should be clear what all of that entails,” he says.
“An employee needs to be able to make an informal complaint, but it should be clear that if they can’t put it in writing it won’t be investigated and dealt with. However if the complaint is formal it will be investigated with fairness and impartiality.”
Zyngier also says the policy should clearly state what action will be taken if bullying is found to have occurred, what the consequences are for vexatious or frivolous complaints, give legal references and inform employees of external bodies that complaints can be made to.
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