The Fair Work Commission has handed down a rare ‘stop bullying’ order after a formal finding that two employees had been bullied.
The employees each made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (Cth) (Act). They were employees of a relatively small real estate business which was unnamed in the decision. The employees made allegations of bullying against a particular Property Manager, who subsequently resigned her employment, but who was then re-employed by a related entity of the employer.
Whilst the decision did not contain full descriptions of the behaviour that was complained of, Commissioner Hampton did note that the behaviour was said to include:
- Belittling conduct;
- Swearing, yelling and use of otherwise inappropriate language;
- Daily interfering and undermining the applicants’ work;
- Physical intimidation and “slamming” of objects on the applicants’ desks;
- Attempts to incite the applicants to victimise other staff members; and
- Threats of violence.
The employer argued in its defence that one of the employees had not formalised their complaint by putting it in writing, and regardless, that they had taken the action of moving the Property Manager to another entity so as to limit the contact between her and the employees. The employer also argued that the Property Manager had denied or explained the reasons for the conduct, and also that the employees’ behaviour had been unreasonable in some instances.
Whilst there were two separate applications made by each of the employee’s, Commissioner Hampton determined to hear those applications together.
The Commissioner noted that prior to the claims being commenced, the employees raised their concerns with the Employer. An informal investigation and then mediation took place.
Following this, the Property Manager resigned her employment with the employer but took up an equivalent position with the related entity. However, a complicating factor was that despite the Property Manager now being located in another workplace, there was still potential for contact between the businesses and the employees. Further, in the lead up to the bullying proceedings, the Property Manager was “seconded” back to the original employer.
This resulted in the employees electing not to attend the workplace, and also the commencement by both employees of workers’ compensation claims.
In his decision, Commissioner Hampton noted that the employer had conceded that they had made a finding that bullying conduct by the Property Manager had occurred. The employer also conceded that the behaviour “may have created a risk to health and safety” of the Applicants. The employer also noted the allegations made about the employees’ behaviours ‘would not of themselves undermine findings about the existence of unreasonable behaviour towards the applicants’.
Commissioner Hampton went on to make the following comments, confirming that the employees had been bullied at work:
“… The conduct revealed in the evidence of the applicants and [the Property Manager] was indicative of a workplace culture where unprofessional and unreasonable conduct and interactions had taken place and that such had created a risk to the health and safety of a number of the workers involved…In all of the circumstances, I found that the applicant workers had been bullied at work within the meaning of s.789FD of the FW Act.”
Commissioner Hampton went on to note that there was an ongoing risk that the employees might continue to be bullied at work, despite the Property Manager being relocated. He said that this was because of the common ownership of the businesses, and the fact that the Property Manager had already been seconded back to the employer prior to the proceedings taking place.
The Commissioner then turned to considering what orders might be made to prevent the further unreasonable behaviours being directed at the employees, noting that risk of such behaviour occurring was ‘real’.
Commissioner Hampton contemplated that the orders needed to cover off on ‘two broad elements’:
“… Firstly, those dealing with specific conduct. This involves a requirement that the applicants and [the Property Manager] do not approach each other and that they not attend the (other) business premises. In some cases, an order that parties avoid each other may not be appropriate as it may have practical difficulties and may not of itself deal with the fundamental unreasonable conduct. In this case, the (now) different employers and work locations meant that avoidance was a practical preventative solution and this was the outcome strongly supported by all parties, including the employer.
Secondly, a number of initiatives have been ordered that go to the broader conduct within, and culture of, the workplace. These include the establishment and implementation of appropriate anti-bullying policies, procedures and training, which will include confirming appropriate future conduct and behaviour. Further, reporting arrangements will be clarified.”
In concluding the decision, Commissioner Hampton determined that the parties involved in the matter would be de-identified.
Lessons from the case
This is the FWC’s first formal finding of bullying since the jurisdiction commenced over 18 months ago. Again, it shows that the practical objective for the FWC is to make orders that will prevent the unreasonable behaviours from occurring again, and maintaining the employment of all involved parties. This case also provides a good description of the type of behaviours that may constitute bullying in the workplace.
Employers should note the Commissioner’s comments in relation to the orders handed down to attempt to improve the culture of the workplace, and the need for the employer to establish appropriate anti-bullying policies, and then provide training on such policies. This is something that Aitken Legal recommends to all employers – ensure you have appropriate policies in place and then make sure you train your staff on those policies. This is an important step in preventing bullying complaints, and ultimately, applications to the FWC.
Lisa Aitken, Managing Partner