HR managers could be found personally liable for bullying and harassment at work, under the national OHS framework, if they fail to take steps to prevent it, according to Hicksons Lawyers partner Brad Swebeck.
The new regime, expected to commence in January 2012, harmonises OHS laws across Australian states and territories, and broadens the definition of "officer" to persons in management and control of a workplace.
While "that 'management' word will be the real test", Swebeck believes the due diligence model places a new obligation on HR managers to have systems in place to do everything they reasonably can to ensure workplaces are free from harassment, bullying and discrimination.
"HR people are going to have to start thinking seriously about what the new Act means," he says. "If they don't have a policy [on inappropriate workplace behaviour], then they're in all sorts of trouble under that Act."
According to fellow Hicksons partner Sarah Jones, policies won't be enough. The obligation on officers is not only to have a system in place, "but to be able to prove that it's being implemented - that they're doing training, that they're making sure everyone is aware of it, and they're following through if complaints are made".
Penalties include corporate and individual fines (up to $3 million and $600,000 respectively), and jail terms of up to five years for the most serious offences. (The recent high-profile case in Victoria, involving a waitress who committed suicide after being bullied, is one that would potentially fall into this category under the new regime, Swebeck says.)
Claims on the rise
"Compensation claims for psychological injuries arising from workplace hostility are increasing," Swebeck says. "Our guesstimate would be that there wouldn't be many employers, medium to large, that won't be faced with allegations of bullying and harassment or stress claims, some time over the next 12 months.
"This means employers must remain more vigilant than ever to ensure that they do everything reasonably practicable to prevent the workplace becoming unhealthy and unhappy."
HR professionals shouldn't rely on their OHS colleagues to manage this area, he says.
"They should be blurred - there shouldn't be any distinction between what people are doing in the workers' comp area and human resources, and they should work together in dealing with these sorts of matters."
HR documentation of relevant activity is vital, Jones says, "because the same evidence is required to defend both sorts of actions... If you're trying to run a s11A defence under the [NSW] workers' comp act - that you've taken reasonable [management] action - you've got to have evidence to prove that you've taken that reasonable action; it's the same sort of evidence that you'd need to defend an unfair dismissal claim, for example."
"If you don't have documentation done properly, a doctor might only hear the injured worker's side and accept it as being linked to some alleged bullying and harassment - when there might be personal reasons, nothing linked to the workplace," Swebeck adds.
Either way, "employers have to deal with it. They need to ensure that anything they do with respect to the allegations… that their robust and contemporary HR policies can deal with it", he says.
Update your policies
Most HR policies don't deal with modern challenges, such as the potential for bullying and harassment on social networks, Swebeck says, leaving employers open to new types of risks.
"It's developing so quickly, and people are misusing it in strange ways that no one ever thought of before," he says. "Some employers... you look at their policies and they're bloody atrocious, which means that procedurally it might all fall down if it ends up before Fair Work Australia."
The other common problem is when policies aren't properly implemented at the time a complaint is made. "When they don't follow their own policies, that's a recipe for disaster too," Jones says. (One such case involved a KFC restaurant that was found to have "impliedly authorised" a manager's sexual harassment of an employee, because it failed to enforce its policies.)
Swebeck says policies should be framed "in such a way that if social networks are misused to have an impact in the workplace, whether it's used during working hours or after, then those employees can be disciplined according to those policies.
"If you don't have those policies you are really, I think, leaving yourself exposed to successful defences being run, that the employee wasn't given either procedural or substantive fairness in the way the investigation took place."
Policies can also spell out that performance management is not bullying, or state a zero tolerance approach to bullying and harassment.
Established principles in decisions
While the challenges might be new, the way the courts deal with them is not, Swebeck says.
"The courts are applying... established principles, by still asking themselves the same questions: has procedural fairness been provided to the employee; has the investigation been objective; is the conduct sufficient to justify either a first and final warning, or termination?
"They're not applying new principles - it's a matter of employers ensuring the way they deal with the misconduct - if it's a case of misconduct - ensures that those well known principles aren't trampled over."
