The Fair Work Commission has handed down the first formal bullying decision since its anti-bullying jurisdiction commenced in January 2014.
The recent decision of C.F.  FWC 5272 (5 August 2015) concerned two related applications for orders to stop bullying under section 789FC of the Fair Work Act 2009 (Cth) (FW Act), with both matters being heard together at a determinative conference. Commissioner Hampton, President of the Commission's anti-bullying jurisdiction, found that a property manager at a real estate business had bullied two employees and that there was a real risk of the bullying continuing if appropriate orders were not made to stop the bullying.
The property manager's behaviour amounted to repeated unreasonable conduct, and included:
- belittling conduct;
- swearing, yelling and otherwise inappropriate language;
- interfering with, and undermining, the applicants' work on a daily basis;
- physical intimidation and slamming objects on the applicants' desks;
- attempts to incite the applicants to victimise other staff members; and
- threats of violence.
After the applicants reported the bullying behaviour, their employer conducted an informal investigation and attempted to mediate the situation. The employer and the manager also made arrangements for the manager to resign her position and take up an equivalent position with a related company, based out of another location. The employer argued that this ensured that the applicants would not have further work-related interactions with the manager, and would have a safe work environment going forward.
However, Commissioner Hampton heard that there was still potential for the applicants to have dealings with the manager during the normal course of business, due to the common ownership of, and close working relationship between, the two businesses. In fact, the manager had already been seconded back to the applicants' employer to assist in meeting business needs.
Even after the move, neither of the applicants had returned to the workplace, and both lodged workers compensation for the cost of medical treatment required as a result of the bullying (though the decision was subject to confidentiality orders and did not disclose the nature of applicants' injuries).
The Commissioner considered the seriousness of allegations, the fact that the applicants were unable to safely return to the workplace until the issues were addressed, the impact of unresolved applications on the small-business employer, and previous unsuccessful attempts to mediate the situation. Ultimately, the Commissioner found that the applicants had been bullied at work within the meaning of the FW Act, and that there was a real risk of further bullying if appropriate orders were not made.
In those circumstances, Commissioner Hampton made orders by consent that:
- the manager not approach the applicants or attend their workplace, and vice versa; and
- the employer implement appropriate anti-bullying policies, procedures and training to address a problematic workplace culture.
The orders are to remain in place for 24 months. The employer must also establish appropriate return to work arrangements for the applicants when they obtain medical clearance to resume duties. Commissioner Hampton emphasised that the orders made were "genuine preventative orders" and were "consistent with the purpose of such orders as contemplated by the [FW] Act."
Commissioner Hampton commented favourably on the employer's conduct of the matter. The Commissioner specifically noted that the employer had made "appropriate concessions" acknowledging that bullying conduct had taken place in the workplace, and that this may have created a risk to health and safety. This meant that findings did not need to be made on each disputed element, and allowed the matter to be dealt with expeditiously.
What does this mean for employers?
The orders handed down in this decision demonstrate the Commission's commitment to making pragmatic orders which will genuinely assist in preventing workplace bullying in the context of specific workplaces and disputes. The decision demonstrates the scope of the Commission's power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent workplace bullying, and should act as a timely reminder to regularly review workplace bullying policies and to ensure all employees are trained on the those policies.
The best defence for employers against workplace bullying complaints is always a good offence. Taking positive steps to implement appropriate workplace bullying policies and address problematic workplace cultures will assist in minimising exposure to workplace bullying claims, and will also be taken into account by the Commission in the event of any application for orders to stop bullying.
Where employers are drawn into bullying claims before the Commission, always consider a strategy for dealing with the matter expediently so that a productive employment relationship can be resumed as soon as possible.