In its first formal ruling after a hearing under the new anti-bullying jurisdiction, the Fair Work Commission has ordered that two bullying victims and the perpetrator not approach each other in the workplace. The new jurisdiction allows the Commission to make any order it considers appropriate to prevent bullying. This case demonstrates the significant potential for inconvenience such orders could cause to employers, when there are perceived or actual risks to mental health and safety of workers.
Two employees each made an application for a ‘stop bullying order’ under the Fair Work Act 2009. Each alleged they had been belittled, sworn at, yelled at, physically intimidated, and threatened with violence by ED, one of the property managers of the small real estate business at which they worked. Each stopped attending work, lodged workers’ compensation claims, and underwent medical treatment, allegedly because of ED’s bullying.
The employer, made aware of these concerns prior to applications being lodged, conducted an informal investigation and attempted a workplace mediation. Subsequently, ED, with the support of the employer, resigned her employment and took up an equivalent position with a related company, which operated from a different location. Nevertheless, there was still significant potential for interaction between the two businesses and their employees. In fact, in the lead up to applications being lodged, ED was seconded back to the original employer to assist the business on a short-term basis.
The Commission’s findings
While the employer conceded that bullying had occurred, Commissioner Hampton stated that the conduct was indicative of an unprofessional workplace culture which had created a risk to the health and safety of a number of the workers involved.
The Commissioner found, in accordance with the relevant provisions of the Act, that the applicants had been bullied and there was a risk that it would continue. Even though ED was now employed by a different business at a different location, there was common ownership of the businesses, and this created a real risk of further interactions and bullying.
The Act provides that, in considering the terms of an order, the Commission must take the following matters into account:
- final or interim outcomes of any investigation conducted into the matter
- the procedures available to the workers to resolve grievances or disputes
- final or interim outcomes arising out of those procedures
- any other matters that the Commission considers relevant.
The Commissioner found that the employer had no formal anti-bullying or grievance resolution procedure; that the investigation made by the employer was inconclusive; and that no other investigations had been conducted.
The Commissioner made the following stop bullying order:
- ED is not to make contact with the applicants, nor the applicants with the property manager
- ED will not attend the premises at which the applicants are employed, whilst they are employed there and have evident work capacity
- the applicants are not to attend the premises of the related company whilst ED remains employed there
- as from when either of the applicants return to their workplace, ED will not have access to the applicant’s portfolios
- the employer is to provide anti-bullying training and an updated anti-bullying policy and complaints handling procedure to all of its staff (including working directors)
- the anti-bullying policy will set out appropriate future workplace behaviour and conduct
- the employer will provide written clarification of reporting arrangements when either of the applicants return to work.
The Order is to remain in force for 24 months.
Lessons for employers
While all parties consented to the orders made in this case, it highlights nevertheless just how broad bullying prevention orders have the potential to be. It also illustrates why employers should consider some of these options when addressing substantiated bullying complaints. Ultimately, employers can demonstrate best practice in addressing bullying by:
- treating bullying as both a risk to health and safety and as a grievance/dispute
- considering all practicable ways to address the risk posed by the bullying behaviour
- monitoring workplaces to identify potential bullying issues and addressing them before working relationships are irreversibly damaged.
If you would like further information about the implications of this case, please contact a member of our Employment, Safety and People team.