In brief – Employers should ensure that their anti-bullying policies are robust

The Fair Work Commission (FWC) has handed down the first formal ruling under the workplace bullying laws that were introduced by amendment to the Fair Work Act 2009 (FW Act) on 1 January 2014. 

Real estate business employees successfully seek stop bullying orders

In the FWC decision in CF and NW And Company A and ED [2015] FWC 5272, released on 5 August 2015, two employees of a small real estate business ("the applicant workers") successfully sought stop bullying orders against their employer and their colleague, who was employed in the role of property manager. 
The FWC made a number of orders against the employer and the property manager after finding that the applicant workers had been bullied and harassed. 
The applicant workers alleged that the property manager's conduct against them in the workplace included:
  • belittling conduct
  • swearing, yelling and use of otherwise inappropriate language
  • daily interfering with and undermining of the applicants' work
  • physical intimidation and “slamming” of objects on the applicants' desks
  • attempts to incite the applicants to victimise other staff members
  • threats of violence 
The FWC found that there was no contest that the applicant workers reasonably believed they had been bullied at work. Holding a reasonable belief is a necessary requirement before an application for a stop bullying order can be made. 

Employees attempt to resolve complaints but to no avail

Prior to the applicant workers lodging their applications with the FWC, the applicant workers had raised their concerns with their employer. An informal investigation and workplace mediation ensued, but none of these mechanisms resolved the applicant workers' complaints. 
Subsequent to this, the property manager resigned from her employment with the employer and commenced employment with one of the employer's related companies. 
The employer argued that because the property manager had been moved to another location, the applicant workers were now working in a safe working environment. But in reality, there was interaction between the two businesses and prior to the FWC hearing, the property manager had also been seconded back to the applicant workers' employer. 

Employer concedes that bullying finding is valid

Under section 789FD of the FW Act, a worker, as defined in the Work Health and Safety Act 2011 (NSW), is bullied at work when:
  • the worker is at work in a constitutionally covered workplace
  • an individual or group of individuals repeatedly behaves unreasonably towards the worker, or group of workers of which the worker is a member, and
  • that behaviour creates a risk to health and safety.
The employer conceded that a finding that bullying conduct had taken place in the workplace could be made. The employer also acknowledged that such conduct could have created a risk to health and safety. This led Commissioner Hampton to conclude that the applicant workers had been bullied at work within the meaning of section 789FD of the FW Act.

Fair Work Commission issues orders to both parties

The FWC made the following orders:
  • that the applicant workers and the property manager do not approach each other and that they do not attend the others' business premises;
  • that the employer establish and implement appropriate anti-bullying policies, procedures and training, including confirmation of the appropriate future conduct and behaviour. 

Employers should ensure compliance with anti-bullying policies

The case serves as a reminder to employers of the formal orders that can be made by the FWC against an employer where a worker has been bullied. 
While in this case the employer did not suffer any reputational damage because the parties were “de-identified”, de-identification is not an automatic right and is unlikely to be granted in all stop bullying cases. Further, the resources and legal cost associated with the claims should be incentive enough for employers to review their anti-bullying systems to ensure that they are robust. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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