In considering the scope of new anti-bullying laws, the Fair Work Commission (FWC) has ruled that an applicant can complain about bullying incidents that occurred prior to commencement of the new laws on January 1, 2014.

However, the remedies available to employees seeking relief are prospective. When making an order, the FWC must be satisfied of a continuing risk of bullying in the workplace (see s. 789FF of the Fair Work Act 2009 (Cth) (Fair Work Act)).

In Ms. Kathleen McInnes [2014] FWCFB 1440,  the employee sought an order to prevent her from being bullied at work. The employee claimed that she had been subjected to bullying over a six year period between November 2007 and May 2013. The employee has been on extended sick leave since the last alleged incident of bullying.

The FWC had to consider whether the employee could bring a complaint under the new anti-bullying laws, given that the matters that she raised pre-dated 2014.

The FWC found that past bullying behaviour can be considered in an application under the new laws, even if that behaviour occurred prior to 2014. This is because the Fair Work Act  requires that  "alleged bullying behaviour take[s] place prior to the making of an application for a successful bullying order". Importantly, "only a worker who reasonably believes that he or she 'has been bullied' can apply for an order".

Notwithstanding, the FWC noted that the new legislative scheme is not designed to punish past bullying behaviour. or for compensating victims. Rather,  it is directed at stopping future bullying behaviour. The employee's substantive complaint has been referred to a single Commissioner for assessment.

Food for thought

It is important to note that the new bullying laws can deal with bullying that is alleged to have occurred prior to January 1, 2014.

As such, employers should not be dismissive of complaints about "old" incidents of bullying. Whilst the passage of time may have an impact on a variety of factors (including, importantly, whether there is a risk of continuing bullying), such complaints still need to be addressed.