The purpose of the Fair Work Commission’s (FWC’s) anti-bullying jurisdiction as provided by the Fair Work Act 2009 (Cth) (FW Act) is not to punish bullies or to compensate an individual who has been bullied but to prevent future bullying in the workplace. It is for this reason that the jurisdiction does not allow the FWC to make a monetary order. The FWC does however have a broad jurisdiction to make any other orders it sees appropriate to prevent future bullying.

A recent decision of the FWC has shown the scope of the FWC’s power by requiring, amongst other things, an employer to notify its employees that it has been subject to stop-bullying orders.

In Ms Watts [2018] FWC 1455, an employee at a private hospital made an application for stop-bullying orders against her employer, a manager and an HR advisor, whom she alleged were bullying her by unreasonably and repeatedly failing to investigate her allegations of bullying against other employees.

In April 2017, the employer advised the employee that a series of allegations had been made against her by her colleagues. The employee was asked to respond to the allegations and in doing so, she alleged that those colleagues had “waged a secret war to get [her] fired for the past 6 years”. The employee provided names and contact details of other employees who would support her counter-allegation including one of her previous managers.

Whilst the employer found the allegations against the employee to be unsubstantiated, it did not acknowledge her allegation that she had been bullied and did not contact the people the employee had suggested.

Further conflicts involving the employee occurred requiring the employer to meet with her on number of other occasions, during which the employee again raised with her employer that she had been bullied by her colleagues.

The manager, who was the one of the named respondents to the employee’s stop-bullying application, confirmed that the employee had raised these concerns with him and the HR advisor but that, despite his request, she failed to give him further detail including who, when and what happened, which prevented them from investigating the matter further.

The FWC considered that this showed that the manager and HR advisor had adopted a common position with their own requirements on how the employee was to complain about bullying, which was over and above what the employer’s policy required. The FWC found that there was no reasonable explanation for not investigating the bullying and victimisation raised by the employee and that this amounted to unreasonable management action.

The FWC also noted that the employer was, at the very least, on notice of the full details of the alleged bullying behaviour when the employee filed her stop-bullying application in September 2017, which contained a list of the incidents as well as statements supporting her allegations. However, the employer chose not to act on the allegations until November 2017 after recommendations by the FWC.

The FWC was satisfied that the employee had been bullied at work and that there was a risk that the employee would continue to be bullied at work, which meant it was necessary for the FWC to now intervene.

In a separate decision (Ms Watts [2018] PR601077), the FWC ordered that the employer:

  • Nominate a point-of-contact (who must be a senior HR employee) for the employee should she wish to raise a grievance about workplace bullying in the future. The point-of-contact must have the power to initiate and oversee any investigations into such grievances and report to the CEO for a period of 12 months;
  • Provide training conducted by an external expert provider focusing on:

    a) The need for effective and empathetic communication when handling bullying issues and skill development to do so; and
    b) How to support employees who pursue complaints of bullying; and

  • Provide employees in the relevant department with a notice stating that the FWC has issued a decision in relation to workplace bullying at that particular workplace and that the employer has been ordered to take certain steps to prevent bullying occurring in the future.

Lessons for employers
When dealing with allegations of bullying in the workplace, it is important that employers are aware of and adhere to their own grievance and anti-bullying policies. Once an employer is made sufficiently aware of such allegations (even if it is in the course of FWC proceedings) it is up to the employer to act upon them in a timely manner. A failure to do so may lead to a finding that an employee was subject to “unreasonable management action” in the anti-bullying jurisdiction.

The FWC has shown that it is willing to make such findings and issue orders as it sees fit to prevent future bullying in the workplace, including requiring employers to advise their employees that they have been subject to stop-bullying orders.

 

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