This case, Ms LP [2016] FWC 763, considered some of the circumstances that may lead to the Fair Work Commission deciding not to make an order to stop bullying.

Although there was a finding that bullying had occurred, Commissioner Hampton declined to make any orders as he was not satisfied that there was a risk that bullying would continue, taking into account some of the measures taken by employer.

Implications for employers

  • The Fair Work Commission cannot make bullying orders unless there is a finding of bullying and a risk that bullying will continue.
  • If a bullying application is made, an employer can take positive steps to address the risk of bullying, and to (possibly) avoid orders being issued.

Background

The applicant, Ms LP, was a Food and Beverage Attendant at a family owned restaurant in Adelaide.

She alleged that she had been bullied by a group of individuals at the restaurant. The alleged conduct included:

  • repeated verbal abuse directed at her;
  • the exclusion of her from a staff meeting;
  • the initial absence of established measures in the workplace to set and enforce appropriate standards of conduct;
  • the employer blaming employees for stealing tips and bringing drugs onto the premises; and
  • a lack of clarity about supervision and management responsibilities in the workplace.

The Commissioner found that Ms LP had been bullied.

Ms LP sought bullying orders under sections 789FC and 789FF of the Fair Work Act 2009 (FW Act), which the employer opposed on the basis that there was no ongoing risk of bullying. The employer pointed to changes in personnel and positive measures that had been taken. In particular, the employer had introduced an anti-bullying policy and provided anti-bullying training to employees.

Decision

Under section 789FF of the FW Act, the Commission can only make orders if it is satisfied that the worker has been bullied and there is a risk that the worker will continue to be bullied.

Commissioner Hampton had regard to the positive measures implemented by the employer, and the fact that some of the perpetrators were no longer in the workplace. Accordingly, Commissioner Hampton considered that if Ms LP returned to work, she would not be subject to bullying by the individuals or group concerned. In addition, if she had future concerns, a relevant and appropriate grievance resolution process was available.

As a result, Commissioner Hampton declined to issue any orders. He was not persuaded that making any orders would be conducive to the constructive resumption of working relationships.

Ms LP [2016] FWC 763