The Fair Work Commission's anti-bullying powers came into force on 1 January 2014 (see our previous update here). In a recent decision (Application by Kathleen McInnes [2014] FWCFB 1440), the Full Bench of the Commission has found that the new laws can apply to bullying that occurred before 1 January 2014.

THE CLAIM

On 9 January 2014, Ms Kathleen McInnes applied to the Commission for an order to prevent her from being bullied at work. The bullying in question occurred over a six-year period from November 2007 to May 2013. Importantly, Ms McInnes did not claim that she had been bullied after May 2013.

One of the respondents, Peninsula Support Services ("PSS"), objected to the application on the basis that the Commission was not empowered to deal with bullying that occurred before the anti-bullying laws came into effect. Allowing the application to proceed, PSS argued, would give the new provisions retrospective operation.

THE DECISION

Under the anti-bullying provisions, the Commission can hear an application to stop bullying so long as it is satisfied that:

  • the worker has been bullied at work by one or more individuals; and
  • there is a risk that the worker will continue to be bullied at work.

The Commission rejected PSS's argument, finding that the new provisions did not prevent it from considering bullying that occurred prior to 1 January 2014.

The Commission explained that the new provisions were not directed at punishing past conduct, but rather at preventing future bullying behaviour. This is demonstrated, for example, by the Commission being specifically precluded from making an order requiring an employer to pay compensation to a bullied employee. Instead, the Commission can only make an order that any future bullying stop.

Because of this focus on preventing future conduct, the Commission found that the anti-bullying provisions did not operate retrospectively and could capture bullying that occurred before 1 January 2014.

WHAT THIS MEANS FOR EMPLOYERS

Employees can seek a bullying order in relation to alleged bullying incidents that occurred in 2013 and earlier. This means the potential for bullying claims is broader. In the short term, it may lead to increased claims by employees who may have believed they were precluded from making claims for pre 1 January 2014 incidents.