Soon after Emma Husar jumped from the sinking ship (that was also on fire and heading towards a storm), announcing she would not contest the next election, the Labor Party’s NSW branch announced that the report into allegations of bullying and sexual harassment her office would be kept secret. Husar, meanwhile, has made a formal complaint.
Crikey has previously covered the inadequacies of bullying legislation for victims. But if you’re the one accused of bullying or sexual harassment, what are your rights?
Knowing the laws
Part of the difficulty is how little there is on the books about how a workplace should deal with a bullying claim. Section 789FD of the Fair Work Act defines bullying as when “a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; AND the behaviour creates a risk to health and safety”.
This creates gaps for both complainants and respondents. As we have previously reported, for people who make a bullying claim, the word “repeatedly”, and the “and” linking the behaviour to a deterioration in the worker’s health and safety, sorely limit what can be reported as bullying. No matter how intimidating, unreasonable or violent the behaviour, if it’s a one-off, it could be a breach of work safety, but it’s not bullying.
But it also offers no indications on what a business should do if a claim is made.
Bullying doesn’t just breach the federal Fair Work Act, it also breaches state-based occupational health and safety laws. All Australian jurisdictions except Victoria and Western Australia have harmonised their safety law, though both are adopting some variation and are largely consistent.
Again, legislation doesn’t give much direction — only that a business must have a policy in place to deal with claims of bullying — but most states do issue “best practice guides” on what should be done.
For example, NSW Worksafe offers advice on confidentiality and transparency when investigating. The emphasis is very much on the right of an accuser to remain anonymous, which is understandable. As Tanya Plibersek has said regarding Husar, many of the staffers who contributed to the inquiry would have expected their complaints would be kept confidential. But should someone be able to at least know what an internal report concludes about them?
So what if you’re fired for the bullying, but you haven’t seen the report that leads to it? If an employee makes an unfair dismissal application, the Fair Work Commission will consider whether a dismissal is harsh, unjust or unreasonable.
And as part of that they will also consider whether the business has shown procedural fairness — essentially, does the person concerned know they’ve done something they could be fired for, and do they have a fair chance at putting this right? Even if an employer has a fair reason to fire someone, it can still be considered an unfair dismissal if they mess up the process.
So Husar’s situation could become a messy question of competing rights. Does the right of a complainant to report bullying or harassment without having to face retribution, have personal and upsetting details of harassment made public, or simply carry around a reputation as a trouble-maker trump the right of an accused person to know the full details of what they’re accused of and where those accusations come from? This second right becomes particularly relevant in the Husar case, given her contention that this is all a political hatchet job based on “vexatious and unfounded claims”.
But this doesn’t apply in the case of serious misconduct. If misconduct is at a level that precludes any possibility that a worker could be kept on, the process can much more swift; credible accusations of widespread, serious bullying or sexual harassment may qualify as serious misconduct.
Chairman of the Australia Institute of Human Resources Peter Wilson told Crikey in some ways the lack of detail around bullying legislation was a good thing.
“Overly prescriptive bullying legislation wouldn’t really be all that helpful,” he said. “There are enormous shades of grey in what constitutes bullying, and what is commonplace and unremakrable in one industry — say, swearing — would be completely inappropriate and intimidating in another.”