Recent cases give useful examples of some of the circumstances where ‘stop bullying’ orders will not be available.
Applicant no longer ‘at work’
Two recent cases before the Fair Work Commission (FWC) have concerned applications for stop bullying orders made after the applicant’s employment had ended. In those circumstances, the FWC could not be satisfied that there was a risk of the bullying continuing and so the applications were dismissed.
In one case, the applicant’s employment had been terminated; in the other case, the employment ended on the expiry of a specified term of employment. In each case, the applicant argued that there was nevertheless a risk of ongoing bullying.
The FWC found that Fair Work Act 2009 (Cth) provisions dealing with stopping workplace bullying are relevantly concerned with whether or not there is a risk that bullying will continue ‘at work’. While an assessment of whether there is ‘a risk’ might require a degree of informed speculation, an assessment of whether that risk may manifest itself ‘at work’ does not. Accordingly, in circumstances where an applicant is no longer employed at the workplace, the FWC cannot be satisfied that there is a risk that the applicant will continue to be bullied at work.
Reasonable management action is not bullying
In another recent case, the FWC considered an application for stop bullying orders by an employee who claimed that he was subjected to unrestrained and ‘malevolently motivated’ micromanagement of his performance by a senior manager, that he claimed was bullying designed to bring about the termination of his employment. The employer claimed that it held reasonable concerns about the applicant’s performance and that the alleged ‘micromanagement’ was reasonable performance management.
The FWC found that while the applicant honestly believed that he was being bullied, on an objective assessment of the alleged bullying behaviour in all the circumstances, the respondent’s performance management of the applicant was a reasonable and ‘ordinary exercise of management prerogative’. As such, the application was dismissed.