On 1 January 2014, the Fair Work Commission (FWC) gained the jurisdiction to make “stop” orders in relation to bullying.
In March, the FWC handed down its first Stop Bullying Orders. The Orders, made by Senior Deputy President Drake in the case of Applicant v Respondent PR548852, were made by consent following a conference between the two parties. The names of the parties were not published (hence the rather unimaginative case name) and unfortunately there are no reported details of the background facts. We do know, however, the content of the Orders made, which was as follows:
The alleged bully:
- Shall complete any exercise at the employer’s premises before 8 a.m.;
- Shall have no contact with the applicant alone;
- Shall make no comment about the applicant’s clothes or appearance;
- Shall not send any emails or texts to the applicant except in emergency circumstances; and
- Shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.
The alleged victim:
- Shall not arrive at work before 8:15 a.m.
The parties were also granted leave to approach the FWC to have the matter relisted for a further conference should there be any difficulty with the implementation of the Orders.
The content of these Orders demonstrates the potentially significant impact that a Stop Bullying Order can have on your workplace. The orders demonstrate that the FWC, through its workplace bullying jurisdiction, has the capacity to actively regulate the daily interactions between employees and how they conduct their working life. Not only may this have a real impact on the employees themselves, but it could also create difficulties for employers in the management of their workplace environment.
These orders highlight the value for employers of instituting policies to proactively prevent bullying, and the importance of investigation and, where warranted, action when a bullying complaint is made. The more the employer can show that it has taken reasonable steps to address bullying, both as a generic risk and also in specific cases, the stronger should be its voice in determining the terms of any Order made and so in minimising its adverse impact upon daily operations.
What this case also shows, given that the Orders were made by consent, is that there is always some sense in trying to discuss (or more formally, mediate) resolutions of this sort. There seems nothing in the Orders as made in this case that should objectively have taken more than 5 minutes to agree, but in all probability the heat and emotion and increasing legal costs surrounding the initial complaints (you get a sense of their general thrust from the Orders, don’t you) will have prevented the dispassionate and pragmatic approach which was needed at the time. If these Orders are representative of what degree of intrusion and granularity may be expected in future, employers should consider inserting a strong encouragement to internal or external mediation in their anti-bullying policies. As a side-issue, it must also follow that if an employee both acts in breach of employer guidance on behavioural standards and then also refuses to adopt a constructive approach to resolving the resulting mess, he/she may more easily be disciplined or dismissed without legal challenge.