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Fair Work Commission anti-bullying jurisdiction: 7 years on

26/08/2020 · 3 minute read

At a glance

  • Revisiting two key decisions on the 7th anniversary of the Fair Work Commission’s anti-bullying jurisdiction 
  • Recommendations for management and employers on dealing with workplace bullying 
  • How the current coronavirus (COVID-19) situation is affecting how we deal with anti-bullying cases 

In 2015, nearly two years after the Fair Work Commission’s (FWC) anti-bullying jurisdiction took effect from 1 January 2014, the Sydney and Melbourne Marsh Benefits People Risk Forums (formerly Workforce Strategies Forum) explored its workings through two key decisions on workplace bullying complaints from the FWC.

The forum, which explores issues impacting workplaces today and in the future, was addressed by Amber Chandler, a Partner at national law firm Kaden Boriss. Chandler explained that of the 874 applications for a Stop Bullying Order in the first 15 months of the jurisdiction, only four resulted in a Stop Bullying Order, with 200 resolved during proceedings and 72 finalised by court decision.

The two cases discussed in the forums, CF, NW v Company A and ED [2015] FWC 5272 (5 August 2015) and Gilbert v Downer EDI Engineering Power Pty Ltd [2015] FWC 5774 (26 August 2015), were amongst the four that resulted in a Stop Bullying Order, hence their significance. More than five years later, the two decisions are as relevant as ever.

The first formal FWC finding of bullying in the workplace

In the case of CF, NW v Company A and ED [2015] FWC 5272 (5 August 2015), two real estate employees alleged bullying and harassment by one of the business’s property managers. The alleged bullying included belittling and humiliating conduct, swearing and abusive language, physical intimidation and victimisation by slamming objects on their desks and making threats of violence.

The employer did carry out an informal investigation and attempted mediation, eventually relocating the property manager to another business at a different venue. The employees made workers compensation claims and were unable to return to work.

Commissioner Hampton found bullying was established, an unprofessional workplace culture existed and interactions between the property manager and the two employees had created a risk to their health and safety.

As a result the Commissioner made orders to remain in place for 24 months covering both specific and broader workplace conduct. In terms of specific conduct, the victims and the property manager were ordered not to approach each other or attend each other’s business premises. Regarding broader workplace conduct, the business was ordered to establish and implement appropriate anti-bullying policies, procedures and training, with reporting requirements.

What happens when a bully claims to be the victim?

During her presentation, Chandler also outlined the case Gilbert v Downer EDI Engineering Power Pty Ltd [2015] FWC 5774 (26 August 2015) to demonstrate the FWC’s approach in a situation where the bully claims to be the victim.

In this case the employment of a trades assistant in Western Australia was terminated for serious misconduct six months after he started work with the company.

The serious misconduct involved a physical altercation in which he displayed aggressive behaviour towards a workmate. The employer conducted a brief investigation and found both parties had breached the conduct policy by failing to treat each other with dignity and respect and engaging in violent and abusive behaviour. Both parties were dismissed for serious misconduct.

The trades assistant filed an anti-bullying application with the FWC alleging he had been the victim of workplace bullying because he was punched in the face by a workmate and received injuries to his lip and jaw.

Commissioner Cloghan was not persuaded that the trades assistant was an innocent party or that he was a victim of workplace bullying. As such, both his anti-bullying and unfair dismissal applications were dismissed.

Overall, Chandler noted the statistics from the first 15 months of the FWC jurisdiction revealed with just 874 applications, the FWC anti-bullying jurisdiction is not the choice of legal recourse for every case of workplace bullying. (Initially, it was expected up to 3,500 applications would be received each year.)

What is reasonable management action to workplace bullying?

The concerns many employers had in the lead-up to the establishment of the anti-bullying jurisdiction have been largely laid to rest, including concerns by employers that their “dirty laundry” would be aired in the FWC exposing them to bad publicity or that the powers given to the FWC to make prescriptive orders would result in extensive meddling in their business affairs. In fact, the FWC through its anti-bullying jurisdiction has facilitated positive cultural change in some workplaces.

Chandler observed the type of litigation employers are more likely to face from alleged workplace bullying is in the context of workers compensation claims, noting claims for psychological injury as a result of bullying and harassment have significantly increased in the past decade.

“Not only having solid bullying and harassment policies and procedures in place, but ensuring there is adequate training, monitoring and enforcement of those policies, will stand an employer in good stead to address problematic behaviour and change workplace culture,” said Chandler.

Chandler recommends employers apprehend workplace bullying behaviours before they become damaging and, if bullying occurs, deal with it appropriately with fair internal investigations and clear outcomes.

The Fair Work Commission covers in detail, with case examples, what it means for “Reasonable management action to be carried out in a reasonable manner” in the context of workplace bullying.

Coronavirus (COVID-19) and workplace bullying

The recent case of Bailey v PCL Finance Pty Ltd; Illawarra Home Loans Pty Ltd T/A Illawarra Home Loans [2020] FWC 3771 (3 August 2020) showed the Fair Work Commission’s commitment to take seriously any bullying behaviour while working from home.

In this case, the Fair Work Commission upheld a worker's stop-bullying application after hearing his claim of being excluded from his workplace and otherwise bullied while working remotely during COVID-19.

The worker first applied for a stop-bullying order in February, claiming that he was being bullied by a coworker. Although he later reported that the bullying behaviour had stopped, the Commissioner allowed the matter to be stood over until May in the event that the bullying resumed, demonstrating that a change in a worker's normal place of employment does not automatically lead to a Bullying Application being dismissed.

In light of more employees working from home full time due to the pandemic, employers need to be aware of new and additional pressures on individuals that can be significant risk factors for workplace bullying.

Chandler’s recommendation that employers apprehend workplace bullying behaviours before they escalate may prove more challenging in a remote workplace environment, but it is critical that these problematic behaviours continue to be identified and reported.

Workplace Bullying Update: In and Out of the Fair Work Commission

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