Despite the predicted influx of anti-bullying complaints, the Fair Work Commission (FWC) has only made a handful of orders since our last update (Bullying update: round one) 1. In the cases where orders have been made, the FWC has adopted a pragmatic approach. The FWC is working with parties to tailor practical orders designed to address and stop repeated instances of bullying behaviour in the workplace.
In this update, we examine a recent FWC ‘stop bullying’ order and look at developments regarding legal representation and costs orders in the anti-bullying jurisdiction that commenced on 1 January 2014.
In the period between 1 January and 30 June 2014, 343 anti-bullying applications were lodged with the FWC. However, as at 30 June 2014, the vast majority of the applications had been withdrawn or did not result in any anti-bullying orders according to figures released by the FWC in its Annual Report for 2013-14.
Since the new regime commenced on 1 January 2014, in the few decisions that have been handed down, there have been a range of creative orders made by the FWC. This includes orders preventing a workplace bully from exercising on a balcony at work at certain times of the day or commenting on a bullied worker’s clothes or appearance2.
Recently the FWC made orders requiring two brothers (who were employed in companies associated with a family trust) to refrain from engaging in a range of conduct over a trial period of three months.3 The orders, developed by agreement of the parties, included:
- avoiding ‘abusive, offensive and/or disparaging’ remarks in respect of each other;
- restricting their email communications to each other to no more than three a day; and
- requiring them to refrain from making Board resolutions that contained ‘false or malicious’ allegations against one another.
The trial nature of the orders illustrates a practical and flexible approach to resolving anti-bullying complaints. However, the effectiveness of ‘stop bullying’ orders made by the FWC is yet to be tested in practice.
The FWC has also been prepared to grant leave to an employer to be legally represented in an anti-bullying application, finding it would ultimately be beneficial to the conduct of the proceedings4. In considering the application for legal representation, the FWC had regard to:
- the complexity of the issues raised in the application (such as jurisdictional issues);
- the extent to which the applicant was familiar with employment law concepts; and
- whether the applicant had access to a person with adequate skills or experience to act as a representative.
In a welcomed decision, the FWC has also granted a costs order against an applicant whose employment ended six days before he made an anti-bullying complaint to the FWC.5
Given that the main purpose of the FWC’s anti-bullying regime is to prevent future workplace bullying, the FWC considered that the former employee’s complaint was vexatious and without reasonable prospects of success as there was clearly no risk of the bullying continuing. Accordingly, the FWC exercised its discretion to award costs in favour of the employer.