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“But why?”: Fair Work Commission publishes first reasons for making stop bullying order

Submitted By Firm: Corrs Chambers Westgarth

Contact(s): John Tuck

Author(s):

By Janine Young (Partner), Chloe Shannon (Associate) & Professor Anthony Forsyth (Consultant)

Date Published: 8/17/2015

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Previous Corrs In Briefs have looked at the evolution of the Fair Work Commission (FWC)’s anti-bullying jurisdiction since its commencement on 1 January 2014.[1] In this In Brief, we consider the learnings for employers arising out of the FWC’s first published reasons for making an order to stop bullying under Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act). 

Background

During a determinative conference in the recent case of CF and NW v Company A and ED,[2] Commissioner Hampton heard that the two applicants, employees of a small real estate business, allegedly had been the subject of belittling conduct, swearing, yelling, physical intimidation and threats of violence, at the hands of a Property Manager. Following an informal investigation into the applicants’ bullying allegations and an attempted workplace mediation, the Property Manager resigned from her employment with the employer and took up an equivalent position with a related company, working from a different location. 

During the conference, the Property Manager denied she had behaved unreasonably towards the applicants and contended that the applicants themselves had acted unreasonably in certain respects.

When can the FWC make a stop bullying order?

The FWC may make an order to stop bullying if it is satisfied that a worker in a constitutionally-covered business has been bullied at work and there is a risk that the bullying will continue.[3] A worker is bullied at work when:

  • another individual or group of individuals repeatedly behaves unreasonably towards the worker; and
  • that behaviour creates a risk to health and safety.[4]

Were the applicants bullied?

The employer conceded that based on the undisputed facts, a finding of bullying could be made - i.e. there was sufficient evidence that the Property Manager had repeatedly behaved unreasonably towards the applicants and that such behaviour may have created a risk to health and safety. 

The employer also acknowledged, and the Commissioner agreed, that the Property Manager’s contrary allegations that the applicants had themselves engaged in unreasonable behaviour did not of themselves undermine a finding that the Property Manager had bullied the applicants.

Due to the employer’s concession, Commissioner Hampton was able to make a finding of bullying without having to resolve the disputed facts.  However, he went further and noted that the evidence revealed:

“a workplace culture where unprofessional and unreasonable conduct and interactions had taken place and that such had created a risk to the health and safety of a number of the workers involved.”[5]

This finding was partly based on the fact that the employer did not have any formal anti-bullying or grievance resolution procedures in place. 

Was there a risk that the bullying would continue?

Taking into account all of the circumstances, Commissioner Hampton found there was a risk the applicants would continue to be bullied by the Property Manager.  This was because:

  • although the Property Manager was employed by a different entity and worked from a different location, there was a real prospect they may have future work related interactions due to the common ownership of the businesses (in fact she had already been seconded back to her original employer in the lead-up to the FWC proceedings); and
  • without measures to set and enforce appropriate standards of behaviour in the workplace, there was a risk of further unreasonable behaviour. 

Orders to stop the bullying

Having satisfied himself that the applicants had been bullied at work and that there was a risk the bullying would continue, Commissioner Hampton made orders to stop the bullying, with the consent of all parties.

In relation to the specific behaviour complained of, the Commissioner ordered that the applicants and Property Manager not make contact with each other and not attend each other’s work premises. In relation to these orders, the Commissioner observed that:

“In some cases, an order that parties avoid each other may not be appropriate as it may have practical difficulties and may not of itself deal with the fundamental unreasonable conduct.  In this case, the (now) different employers and work locations meant that avoidance was a practical preventative solution and this was the outcome strongly supported by all parties, including the employer.”[6]

Commissioner Hampton also made orders to address his broader concerns with the culture of “unprofessional and unreasonable conduct” at the workplace, including that the employer provide anti-bullying training and an updated anti-bullying policy and complaints handling procedure to all staff. 

In making these orders, the Commissioner stated that:

“In my view, the orders, particularly those dealing [with] future workplace conduct and providing appropriate procedures to make and deal with complaints, are genuine preventative orders in the context of this workplace and are consistent with the purpose of such orders as contemplated by the [FW] Act.”[7]

The orders are to remain in force for a period of 24 months. 

De-identification of the parties

We have previously considered the FWC’s reluctance to issue orders prohibiting or restricting the publication of the identities of parties in bullying matters, and tendency to favour the principle of “open justice” in most cases.[8]

However, in CF and NW v Company A and ED, Commissioner Hampton considered that de-identification of the parties was appropriate in circumstances where:

  • all proceedings, including the determinative conference, had been conducted in private;
  • all parties supported that outcome;
  • the potential for the parties not to be identified was key to the employer’s admission of bullying and the applicants’ and Property Manager’s acceptance of that admission; and
  • finalising the matter through consent orders was desirable in order to assist the continuing working relationships between the applicants and the employer.

Learnings for employers

The FWC’s first published reasons for making stop bullying orders provide useful insights into the steps that employers should take to address bullying in the workplace, and how the tribunal is likely to deal with proven cases of bullying:

  • It is critical that employers have in place a formal anti-bullying policy and grievance resolution procedures, as well as appropriate anti-bullying training, to aid in the prevention of bullying in the workplace and deal with any instances of bullying that may surface.
  • Where bullying conduct has been substantiated, separating the complainant(s) and respondent(s) may not be sufficient to remove the risk of further bullying, if there is still potential for future work-related interactions between the disputing parties.
  • A person who complains of bullying may be the victim of bullying even if he or she has also engaged in unreasonable conduct.
  • The Commission may make orders to stop bullying beyond the scope of the specific conduct complained of, if the evidence suggests there has been repeated unreasonable behaviour which has created a risk to the health and safety of people other than the applicant or applicants. 
  • The Commission may be more likely to make an order for de-identification of the parties if the matter is dealt with in private conference and the parties have made concessions on the basis that their identities will not be published. 

 


 

Look out for another publication soon in our new “Keep it Safe” series, exploring the increasing importance of managing bullying; the diverse range of legal risks for employers in this area; and broader issues relating to mental health in the workplace.


[1] See here, here, here and here.

[2] [2015] FWC 5272 (5 August 2015).

[3] Section 789FF(1) of the FW Act.

[4] Section 789FD(1) of the FW Act.

[5] [2015] FWC 5272 at [20].

[6] [2015] FWC 5272 at [31].

[7] [2015] FWC 5272 at [34].

[8] See here.

 

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