An employer may avoid having an anti-bullying order made against it because of its implementation of a comprehensive appropriate workplace behaviour policy and anti-bullying training for its workforce.  The positive initiatives taken by a well-known restaurant have led the Fair Work Commission (FWC) to be disinclined to grant the stop bullying order sought by the applicant, despite finding that she had been subjected to bullying behaviour.  A final decision is pending.

What happened?

The applicant is a part-time food and beverage attendant, employed to work in a restaurant’s kitchen.  Evidence was led that a head chef engaged in swearing, name calling and aggressive insults (and frequently combinations of all three) against a number of staff members, including the applicant.

As a result of this behaviour, and some other issues, the applicant lodged her first application for an order to stop bullying in 2014.  This resulted in the FWC making a number of recommendations directed at improving the future conduct of both parties, however, no findings were made as to the alleged bullying behaviour.

One of the key focuses of the FWC’s recommendations was that the restaurant develop and put in place a policy to establish appropriate behaviour standards in the workplace.  The restaurant did just that, and a comprehensive HR policy took effect a few months after the recommendations were issued.  The restaurant also put all staff members through anti-bullying training within a similar timeframe.

Despite this, the applicant remained unsatisfied with her employer’s actions and felt she continued to be bullied when, amongst a number of things, she was excluded from staff meetings, her complaints were not appropriately investigated and she was subjected to disciplinary processes in relation to her own inappropriate actions.  The applicant subsequently lodged a workers compensation claim and a second application to stop bullying. 

The FWC found that the applicant was bullied at work, but that the risk that she would continue to be subjected to the bullying behaviour was unlikely.  Amongst other reasons, the appropriate workplace behaviour policy and the anti-bullying training that had been implemented were found to have the effect of reducing whatever risk was otherwise present.  While a final decision is pending, the FWC has said that at this stage, it is not persuaded that it can or should make the orders against the employer.

Lessons for employers

This decision suggests that having in place appropriate policies regarding appropriate workplace behaviour, including in relation to bullying, can reduce the risk of continued bullying in the workplace.  This is critical because an order to stop bullying can only be issued against an employer by the FWC in circumstances where there is a risk that a person will continue to be subjected to the bullying behaviour.  If the policies are appropriately implemented in a workplace – including by the provision of training to staff - an employer will have grounds to argue that there is no future risk of bullying in the workplace, even if bullying was previously found to have occurred.

Now is the right time to review your workplace’s appropriate behaviour policies and put in place staff training to make sure that there are sufficient protections in place for whatever the new year has in store for your business.