On 5 August 2015, the Fair Work Commission made its first formal finding of workplace bullying under the Fair Work Act 2009 (Cth).
Two workers made applications to the Commission seeking stop bullying orders against their employer, a small real estate business. The workers claimed that the employer’s property manager had engaged in unreasonable behaviour towards them, which included belittling conduct, swearing, undermining their work, physical intimidation, slamming of objects on their desks, threats of violence and attempts to incite them to victimise other staff.
The employer had informally investigated the workers’ allegations (although the findings were inconclusive) and had attempted workplace mediation. With the support of the employer, the property manager subsequently resigned, but was re-employed in a related corporation of the employer at a different location. Despite this, there remained potential for interaction between the two businesses and, in the lead up to the proceedings before the Commission, the property manager was seconded back to the original employer to help with the business on a short-term basis.
At the determinative conference, the employer conceded that a finding that bullying conduct had occurred could be made because the undisputed elements of the evidence indicated that repeated unreasonable behaviour had occurred towards a group of workers, namely the applicant workers. The employer also conceded that this conduct may have created a risk to health and safety. Not surprisingly in these circumstances, Commissioner Hampton found that the applicant workers had been bullied at work within the meaning of the Fair Work Act 2009 (Cth).
Commissioner Hampton also found that while the property manager was now employed by a related corporation at a different location, common ownership of the businesses, and the fact that the property manager had been seconded back to the original employer, meant that there was a risk that the bullying of the applicant workers at work could continue. In these circumstances, Commissioner Hampton was satisfied that jurisdiction existed for the Commission to make stop bullying orders.
The Commission’s orders, which were made by consent and will operate for 24 months, fell into two broad categories: first, to stop the specific conduct by avoiding interactions and contact between the applicants and the property manager, and second, guarding against future inappropriate conduct in the employer’s workplace by creating an anti-bullying culture by the establishment of appropriate anti-bullying policies and procedures for dealing with complaints, and requiring appropriate training.
Lessons for employers
This case demonstrates the importance of employers taking proactive measures to prevent bullying by having in place appropriate policies outlining what does and does not constitute bullying and procedures to follow if bullying occurs.
The need for employers to take proactive steps to prevent bullying also contemplates providing education to workers in these policies and procedures by, for example, the delivery of periodic training. Monitoring compliance with the policies and procedures is also vital.
In the event that bullying occurs, immediate steps should be taken to address it, and to ensure that it does not continue. Importantly, measures which perhaps reduce, but do not remove, the risk that bullying will continue may not be sufficient to avoid a stop-bullying order being made.