In 2013, the Fair Work Act was amended to give the Fair Work Commission the power to deal with allegations of bullying.
What is bullying?
Under the Act, an employee is bullied where an individual or a group repeatedly behaves unreasonably towards the employee. The behaviour must create a risk to the health and safety of the employee to be considered bullying.
The Commission’s power
The Commission has been empowered to make orders to prevent the employee from being bullied at work.
Bullying regulations reinforced
Employers must investigate all bullying claims or risk orders from the Commission
Bullying allegations, formal and informal, must be investigated by employers, the Fair Work Commission confirmed in March.
In the Jennifer Watts case, Commissioner Williams found that Glengarry Private Hospital owned by Ramsay Health Care had not acted
to try and protect Watts from the other employees that she had identified as bullying her.
The Commissioner said: “I am satisfied that… Ms Watts’ co-workers behaved unreasonably towards her.”
“There is no doubt… (Watts’ supervisors)… consciously decided not to investigate the bullying and victimisation Watts had referred to in her written response she provided in April 2017 at that time or anytime thereafter…”
“There is evidence from)… (Watts’ supervisors)… as to why these matters were not investigated as Watts urged them to”.
The decision highlights the need for an employer to identify and investigate all complaints raised.
“It should be recognised there are two reasons why an investigation into an allegation of bullying is undertaken by an employer.
“The first is to establish whether in fact an employee has been subject to unreasonable behaviour so that if this has happened they
can be provided with support and assistance, and remedial action taken.
“Secondly that investigation will seek to identify whom was responsible for any unreasonable behaviour and as part of taking action to prevent further unreasonable behaviour the individual/s may be subject to disciplinary sanction if appropriate”.
“In some cases it may be established that an employee has been subjected to unreasonable behaviour but for any number of reasons the
investigation does not lead to disciplinary sanctions against any other individual perhaps for example because no individual can be
“This investigation will still be an important and positive development for that employee who had been subjected to unreasonable behaviour”.
In the Watts’ case, the Commission stepped into the role of the employer and proposed to issue an order.
Further to this, the Commissioner found that the employer did not follow its own formal bullying process.
Master Plumbers, Industrial Relations expert Phil Eberhard, said employers must abide by their published policies.
“The policies established a formal investigative process. However, the hospital did not investigate the complaints.”
“This was contrary to its own policy.”
“The question is why promulgate a policy and then not follow the procedures within it. Such a situation leaves the employer vulnerable.”
For more details on this finding, contact Master Plumbers’ Senior Workplace Relations Adviser Phil Eberhard on (03) 9321 0720, mobile 0425 790 722 or email [email protected].