A year on, but floodgates set to remain closed

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An area that was touted as a boon for law firms a year ago is unlikely to see long-awaited floodgates open on new legal work in 2015.
‘Natural limitations’ in the structure of the nascent anti-bullying jurisdiction mean firms won’t be flooded with new work this year.
Since being introduced on 1 January last year, the jurisdiction has not been utilised as widely as was predicted. The first half of 2014 saw the Fair Work Commission receive close to 350 applications.
People + Culture Strategies workplace law expert Kathryn Dent told Australasian Lawyer that ‘natural limitations’ ensured the floodgates were not about to open in 2015 when it comes to new applications.
“We are still watching the anti-bullying decisions coming down and there are certainly areas of the legislation that haven’t been examined in depth by the courts,” Dent said.
She notes the question of when a worker is considered to be at work, as well as the evolving interpretation of ‘reasonable management action’.
“A lot [of applications] are leveled at managers, and companies need to be aware of the type of conduct that managers can safely engage in.”
However, while Dent does expect there to be an increase in applications as people become more familiar with the jurisdiction, ‘natural limitations’ would stem the extent new case flow.
“The courts can’t order compensation under that type of action; if an employee is seeking compensation for illness or injury, for example, then an anti-bullying order is not the forum for that,” Dent said.
She said those who are looking for bullying to stop would use the jurisdiction, but may take some time to become comfortable with it.
“The other natural limitation is that employees need to first comply with grievance procedures within their organisation,” Dent explained.
“If an investigation finds there is no case to answer, that is a natural filter for applications that may have gone to the Fair Work Commission. Internal processes may end up resolving the issue,” she said.
Looking forward towards 2015, Dent said a huge inundation was not expected. “You are not going to see the floodgates open I don’t think.”
Brisbane-based Ashurst partner and workplace law expert James Hall said employers should expect increased usage of the jurisdiction by employees over time, as it becomes more widely recognized and understood.
“It’s important to bear in mind that when the unfair dismissal regime was first introduced, you had a similar lukewarm take-up initially, and it took some time for the jurisdiction to establish itself,” Hall said.
If there is a ‘reasonable correlation’ between unfair dismissals and anti-bullying, Hall said it could take 2-3 years before it is more widely utilised. The Commission noted in its annual report last year that each month of operation had seen slight increases in the number of applications received.
Regardless of the volume of cases, Hall said in some cases anti-bullying was already being seen as a ‘sword’ that employees could use to protect their employment status. In some more sophisticated industries - particularly those with unionized workforces - Hall said it was even possible that the jurisdiction is being used ‘strategically’.
“I have seen one claim, for example, where in my view the claim itself was purely designed to band aid a performance issue for the employee,” he said. “From that perspective, employers have some challenges in the management of these claims.”