In January 2014, the Fair Work Commission (FWC) began exercising its new jurisdiction to make orders in regard to bullying in the workplace. This new jurisdiction gives the FWC power to make any order, except for reinstatement or monetary compensation, to prevent bullying. The FWC will also not promote or recommend monetary settlements of bullying applications.
It is the fact that compensation cannot be sought in a bullying application that will create an issue for indemnity under an employment practices liability (EPL) policy. This is because, for this cover to respond, there usually needs to be a “claim for compensation or damages”. A bullying application will, therefore, not be a “claim” as defined in a typical EPL policy.
There have been a number of FWC decisions considering applications for bullying orders that provide useful guidelines on how the FWC will approach bullying applications and what orders will be made.
In its January to March 2014 quarterly report, the FWC reported that:
- there had been 151 applications for an order to stop bullying;
- there had been 8 decisions made, with only 1 application being granted and an order issued; and
- out of the 151 applications, 109 applicants stated that they had been bullied by their manager.