Anti-Bullying Order

The Decision

An anti-bullying order has recently been made in CF, NW v Company A and ED [2015] FWC 5272. Whilst the names of the parties have been redacted (hence the anonymised case name) and correspondingly the specific orders have not been released, the Fair Work Commission (“the Commission”) provided a general overview of the orders that were made. In essence the orders require that:

• Where appropriate, people involved in the bullying (either as a bully or as the bullied) not approach each other;
• The implementation of anti-bullying procedures and policies, training and procedures; and
• Reporting arrangements within the employer be clarified.
• The case shows that the Commission in a bullying matter can make orders that impact on both the relevant employees and the company more generally.

Background to Anti-Bullying Orders

Under section 789FC of the Fair Work Act (“the Act”), a worker who “reasonably believes” that they have been bullied at work can apply to the Commission for an order to stop the bullying. Section 789FD(1) states that a worker is bullied at work when: another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and “that behaviour creates a risk to health and safety.”: s 789FD of the Act. In order for an order to stop bullying to be made a worker has had to have been bullied at work, either by an individual or a group, and the Commission must find that there is a risk that the worker will continue to be bullied: s 789FF(1) (b) of the Act. However “reasonable management action carried out in a reasonable manner” is not bullying.

This new jurisdiction commenced at the start of 2014. After a very slow start it appears that the number of applications has increased. It appears that the conciliation process adopted by the Commission is seeing matters being resolved without the need for a contested hearing. Given that anti-bullying orders are predicated on an applicant remaining in or returning to work there is a strong disincentive for claimants to continue with proceedings in circumstances where they wish to maintain effective working relationships with co-workers and their employer. Of the cases that have proceeded to hearing vindication appears to be a strong motivation for claimants, and they generally involve instances where a claimant perceives unfairness rather than actual bullying.

Since January 2014 EMA Legal has advised and acted in a number of anti-bullying applications. We are also able to assist more generally in advising employers on what to do with bullying and other employees who are destructive in the workplace.