Resources: Blog

Stop Bullying Orders not required after employer changes its ways

Blog
|

As a matter of good practice, it's important that employers have in place an anti-bullying policy

The Fair Work Act 2009 (Cth) (FW Act) provides that the Fair Work Commission may only make orders to stop bullying if it is found that the worker has been bullied at work and if there is a risk that the bullying will continue.

Ms LP [2016] FWC 763

The Fair Work Act 2009 (Cth) (FW Act) provides that the Fair Work Commission (the Commission) may only make orders to stop bullying if it is found that the worker has been bullied at work and if there is a risk that the bullying will continue.

The FW Act also sets out a list of factors that the Commission is to consider if it was to make such an order. For example, the factors include whether there were any procedures in place and available to resolve workplace grievances or disputes.

In Ms LP, an application for an order to stop bullying was lodged by LP (the Applicant) who was employed as a Food and Beverage Attendant by a family owned restaurant in South Australia (the Employer). The Applicant alleged bullying conduct by the Manager/Co-Director/Owner, the Accounts Clerk and a lawyer acting on behalf of the Employer as well as by the former Head Chef and former Supervisor (the Respondents).

The matter was subject to preliminary and conciliation conferences where the Commission made a number of recommendations, including:

  • the development and implementation of a behavioural standards policy which included a grievance procedure;
  • monitoring of the implementation of the behavioural standards policy; and
  • anti-bullying training to be provided to managers and employees.

The matter proceeded to a hearing where it was held that some allegations of unreasonable conduct had taken place. At the time, Commissioner Hampton sought submissions as to whether stop-bullying orders were required given that some of the individual Respondents were no longer employed, that the Employer had taken measures which would reduce the risk of bullying conduct and that the Applicant had not returned to work for some time.

The Applicant submitted that there was a risk that the unreasonable conduct would occur in the future as some of the conduct took place after anti-bullying policies were implemented. Accordingly, she argued that stop bullying orders should be made by the Commission. The Employer and the Respondents opposed the orders sought by the Applicant.

Commissioner Hampton ultimately declined to make stop-bullying orders because they were not necessary and would not assist in resuming working relationships. He noted that the Employer had now implemented positive measures including the grievance procedure, with anti-bullying training provided to all employees (and expected to be provided to all future employees) and adjusted rosters. In declining to make the orders, Commissioner Hampton did recommend that some of the Applicant’s proposals which included formalising job descriptions and displaying anti-bullying material for employees, be adopted.

As a matter of good practice, it is important that employers have in place an anti-bullying policy which specifies what is and what is not bullying behaviour, how to make complaints about alleged bullying conduct, what is reasonable management action and what action the employer will take in response to complaints of workplace bullying.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

Similar articles

Fair Work Commission upholds dismissal of an employee who misused a company coffee account

Caffeine Hit

Financial misconduct committed by an employee can fundamentally damage the trust and confidence in an employment relationship. Unfortunately, financial misconduct is a common issue for Australian businesses and if it is not dealt with promptly and effectively, there is an opportunity for further misadventure.

Read more...

FWC upholds dismissal of an employee who repeatedly and deliberately accessed customer’s confidential information without authorisation

Celebrity search

During the course of their employment, employees may have access to confidential information which belongs to their employer. This information may be in the form of personal information provided by customers and is therefore sensitive in nature.

Read more...

The onus and presumption in adverse action matters

It’s on you

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.

Read more...

Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

Read more...

The importance of WHS refresher training

Not a “one and done” thing

It is an expected and necessary part of work health and safety (WHS) plans that all new workers receive relevant WHS training.

Read more...

Casual Terms Award Review 2021

NEWS UPDATE

In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.