What you need to know
- Management of workplace bullying requires the commitment of the most senior officers and executives of the company, including the board.
- Boards should adopt a policy or code of conduct that makes it clear that workplace bullying is not tolerated and provides for procedures and mechanisms to report, investigate and appropriately deal with any workplace bullying that is alleged to have occurred.
What you need to do
Review your board policies to ensure:
- the code of conduct includes express reference to the workplace behaviours you want to engender throughout the company; and
- a harassment, bullying and discrimination policy is expressly stated to apply to all officers (including board members), executives and staff as well as contractors at work in the business.
The board must take ownership of, and be committed to complying with and enforcing, the policy or code of conduct. This includes ensuring that, if there is any workplace bullying, it is dealt with in a manner that is consistent with the company not tolerating workplace bullying.
Workplace bullying – an ongoing issue
Workplace bullying remains an ongoing issue:
| Damages in excess of $1m have been awarded |
Where an employer has breached its common law duty to take reasonable care or provide a safe working environment significant damages have been awarded (eg, Nationwide News Pty Ltd v Naidu (2007 NSWLR 471) ($1.95m damages); Swan v Monash Law Book Co-operative [2013] VSC 326 ($592,000 damages); Mathews v Winslow Constructors Pty Ltd [2015] VSC 728 ($1.360m damages). |
| Steps to make bullying a criminal offence |
Following the Brodie Panlock case in Victoria, where a café worker committed suicide after being subject to bullying conduct, in 2011, section 21A of the Crimes Act 1958 (Vic) was amended to extend the concept of stalking to include bullying conduct. In 2017, South Australia considered the introduction of a bullying offence carrying a maximum penalty of 10 years imprisonment (Statutes Amendment (Bullying) Bill 2017), and this legislation may be further considered. |
| In 2014, the FWC's anti-bullying jurisdiction took effect |
This allows the FWC to make orders to stop a worker from being bullied at work. There has been an upward trend in the number of applications from 340 in 2013/14 to 720 in 2016/17. |
| In 2017, the FWC bullying jurisdiction moved into the boardroom |
This happened when the FWC found that a director was a worker and could ask for an order to stop alleged bullying conduct. |
| WHS regulators have been conducting investigations into bullying allegations |
A company, and individuals, can be criminally convicted under WHS legislation, and substantial penalties can be ordered for failing to ensure that appropriate steps are taken to prevent bullying conduct, and to properly manage bullying complaints where they occur. |
Focus of board policies
Some board policies and codes of conduct may focus on duties under the Corporations Act 2001 but not expressly refer to positive workplace behaviours such as fairness, integrity and treating others with dignity, respect and courtesy. These values are the building blocks in managing workplace bullying.
Why update board policies?
From a corporate perspective
|
From a legal perspective |
| Demonstrates the board's commitment |
Helps directors demonstrate steps to exercise due diligence under harmonised WHS legislation |
| Is likely to achieve greater compliance throughout the company |
Helps to avoid:
- regulator investigations
- claims for damages at common law
- applications to the FWC for orders to stop bullying conduct
|
| Demonstrates consistency of purpose and showcases the company as an employer of choice |
Helps to avoid the cost, resources and disruption involved in managing these claims. |
Authors: Stephen Nettleton, Senior Consultant and Garry Besson, Senior Adviser - M & A.
