A recent decision on bullying by the Fair Work Commission demonstrates the need for comprehensive compliance training – even if it occurs after a bullying finding.
At a Fair Work Commission hearing held last week to determine the appropriate orders (referred to as ‘anti-bullying orders’) to be made against an Adelaide restaurant, the Commission concluded that no order should be made. This occurred despite the Commission finding in November last year that a catering assistant at the restaurant had been bullied in her employment.
The Commission based its recent decision on the ‘positive steps’ taken by the employer since the bullying finding. After the original decision in 2015, the restaurant had implemented procedures for dealing with bullying complaints and bullying training. These measures ultimately saved it further time, costs, and embarrassment.
Of course, if these measures had been put in place before the initial bullying complaint, it is possible the bullying wouldn’t have taken place in the first place and the Commission wouldn’t have made a finding of bullying against the employer. So although the restaurant has avoided an anti-bullying order by rolling out anti-bullying procedures and training, it could have avoided the business and legal costs of bullying litigation if it had instituted these measures earlier.
In a significant development for all employers, the Commission also considered the possibility of restoring the leave balance of employees who have had to take time of work because of bullying and harassment. The employee in this case did not make this claim in the end, but the Commission nonetheless indicated that there are opportunities for employees alleging bullying at work to make this claim in future.
Yet again, the Commission sends a resounding message to organisations. Procedures and training are essential for employers to avoid liability for unlawful behaviour and the related penalties.