Amzalak [2016] FWC 6590

KM [2016] FWC 2088

An individual who alleges they are being bullied at work may be precluded from applying for a stop bullying order if they cannot satisfy certain threshold questions.

One such question is whether the worker is at work in a ‘constitutionally covered business’.

In the case of Amzalak [2016] FWC 6590, the Fair Work Commission found the Department of Education and Training was not a ‘constitutional corporation’ and so the worker was not at work in a ‘constitutionally covered business’. Accordingly, the Commission had no jurisdiction to hear and determine an application for a stop bullying order made by a teacher who was employed to work at a Victorian government school.

Another threshold question is whether there is a risk of future bullying.

In KM [2016] FWC 2088, an employee in the online healthcare sector had not been present in the workplace since mid- 2012, when she had apparently been denied access to her work emails during a period of absence. She considered herself as being dismissed at the time.

The Commission noted that where an applicant will no longer be at work with the alleged bully, and there is no reasonable prospect of that occurring in some capacity as a worker in future, it will be almost impossible for an applicant to satisfy the ‘future risk’ requirement. As the applicant was no longer an employee, there was no foreseeable future risk of her being bullied.