The Fair Work Commission has determined that its new anti-bullying powers allow it to deal with incidents occurring before 1 January 2014.

The Fair Work Commission’s new anti-bullying powers came into effect on 1 January 2014. The powers allow the Commission to made orders to protect workers who are being bullied at work.

But what about bullying that occurred before the Commission received its new powers? That question has now been answered by the Commission in Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014).

In that case, on 9 January 2014 Ms McInnes, an employee of Peninsula Support Services, applied to the Commission for an order to prevent her from being bullied at work. Ms McInnes alleged that she had been bullied at work over a six-year period ending in March 2013. She did not allege that she had been bullied after that date.

Peninsula Support Services argued that the Commission did not have jurisdiction to deal with bullying conduct that occurred before the new anti-bullying powers were introduced on 1 January 2014.

The Commission held that it has the power to deal with an application under its new anti-bullying powers provided the Commission is satisfied that:

  • a worker has been bullied at work by an individual or group of individuals; and
  • there is a risk that the worker will continue to be bullied at work by the individual or group.

This decision means that an application to the Commission about bullying will be valid as long as there is a risk of ongoing bullying, even if that risk is based on alleged bullying that occurred before 1 January 2014.

Employers should take note of this decision and ensure that bullying complaints are properly investigated regardless of when the alleged bullying occurred.