Australia: Stop that! Fair Work Commission makes second stop bullying order
Clayton Utz Insights

Key Points:

The Fair Work Commission's power is broad and is, to some extent, an exercise in creative problem-solving and people management, so employers should ensure that they take an active approach to bullying and harassment.

Since the anti-bullying provisions in the Fair Work Act 2009 (Cth) were introduced on 1 January 2014, there has been much speculation about the specific orders that the Fair Work Commission might make to stop and prevent a worker from being bullied at work. While there has been a large number of applications to the Commission (as at 31 March 2015, it had received some 874 applications) and the provisions have had a significant cultural impact on awareness of bullying, there are few cases where orders have been made.

The notion of bullying is a familiar one in workplace relations law but the Fair Work Act's anti-bullying regime is novel in that it gives the Commission power to in effect, regulate the inner workings of a workplace, which could entail business costs, interfere with individual liberty and potentially represent a significant incursion into managerial prerogative. The decision in CF v Company A [2015] FWL 5272, the Commission's second stop-bullying order ¹, is therefore important guidance.

The bullying complaint in CF v Company A

The facts of the case are quite brief. The applicants, CF and NW (the FWC's decision does not identify any of the relevant parties) were employees of a relatively small real estate business, Company A. They alleged bullying by Ms ED, who was employed as Property Manager.

A finding that bullying has occurred is one of the two threshold requirements for the exercise of the jurisdiction to make a preventative order. Under section 789FD of the FW Act, bullying is defined as when:

• a worker behaves unreasonably towards another worker or group of workers; and
• the behaviour creates a risk to health and safety.

On the facts, Ms ED's conduct was alleged to include:

• belittling conduct;
• swearing, yelling and use of otherwise inappropriate language;
• daily interfering and undermining the applicants' work;
• physical intimidation and slamming of objects on the applicants' desks;
• attempts to incite the applicants to victimise other staff members; and
• threats of violence.

Initially, the applicants reported their concerns about ED's behaviour to the employer's management. An informal investigation was conducted which reached inconclusive findings.

At hearing, the employer initially asserted that the applicants themselves had acted unreasonably in certain respects and relied upon the fact that Ms ED had denied some of the allegations. However, ultimately, the employer conceded that, notwithstanding these counter-arguments, the evidence established that Ms ED had bullied the applicants. The employer also conceded that Ms ED's conduct may have created a risk to health and safety.

The second threshold requirement to exercise of the FWC's power is a finding that "there is a risk that the worker will continue to be bullied at work".

The facts of the matter were somewhat unusual in that following the employer's investigation, Ms ED had resigned her employment to take up new employment with a related corporation. This operated from different premises. In addition, both CF and NW had ceased attending the workplace and had lodged claims for worker's compensation.

Despite Ms ED's new employment, the fact that she remained employed within the same corporate group and importantly, that she was seconded back to her former employer, gave rise to a risk of further harmful interaction between her and the applicants.

Accordingly, the Commission was satisfied of a risk of continued bullying.

The remaining issue was what order ought to be made in the circumstances so as to prevent the alleged bullying in future.

What sort of anti-bullying order is appropriate in this case?

Section 789FF(1) of FW Act gives the Fair Work Commission a power, where the threshold requirements are met, to "make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work".

The Act is silent as to the kinds of orders to be made, so it confers great latitude upon the Commission.

In the circumstances, the Commission made orders lasting 24 months:

1. that the applicants and Ms ED not approach each other and that they not attend each other's premises.

2. The FWC conceded that an order of this kind might not be appropriate in some cases, such as where the employer operates from a single premises, because it would be difficult to co-ordinate the movement of employees so as to prevent one approaching the other.

   However, in this case, Ms ED was no longer based at the same location as the applicants, making an order in these terms suitable; and

2. that the employer:
3. 1. establish and implement appropriate anti-bullying policies, procedures and training, to (amongst other things) confirm "appropriate future conduct and behaviour"; and
   2. clarify reporting arrangements.

   3. In contrast to the first order, the second was directed at the employer rather than the individual employees. Order two aimed to cultivate a culture within the workplace at large, to discourage and sanction bullying.

Ultimately, both orders had the consent of all parties.

Anti-bullying orders: prevention is better than cure

As can be seen, the Fair Work Commission's power is broad and is, to some extent, an exercise in creative problem-solving and people management. Unavoidably, most if not all preventative orders are likely to entail some cost to the business: in this case, the costs of establishing and implementing appropriate policies, procedures and training require some financial outlay.

Employers should ensure that they take an active approach to matters such as bullying and harassment. Appropriate and up-to-date bullying and harassment policies, procedures and training which reflect the latest case law should be the norm in all organisations. At the very least, this will ensure that employers can retain control over the issue in their workplace, as well as mitigating the pernicious effect bullying can have on employee welfare, dignity and morale.

Neglecting the issue could make it more likely that the matter will pass into the hands of the Fair Work Commission, which brings with it the prospect of an imposed solution, rather than one arrived at by the employer itself, in accordance with its own policies and procedures.

Bullying matters also carry with them the risk of reputational damage to the employer. This is all the more reason to have in place mechanisms to effectively deal with them before they evolve into public, contested hearings with damaging dirty laundry aired for all to see.

You might also be interested in...

• One year on: the Fair Work Commission's bullying jurisdiction, key cases and lessons
• Bullying claim for bizarre injury rejected
• "Go put some lippy on": recent case demonstrates how not to respond to a bullying complaint

Footnote

¹The first decision of its kind, Applicant v Respondent (AB2014/1052), resulted in the Commission making orders by consent of the parties.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.