Employers may be able to avoid an anti-bullying order of the Fair Work Commission (Commission) to stop bullying, even where the Commission finds that a worker has been bullied at work, if the employer has taken positive steps to reduce the risk of bullying in the workplace.
Before the Commission can make an order under section 789FF of the FW Act to stop bullying, the Commission must be satisfied that there is a risk that a worker who has been bullied at work will continue to be bullied.
If a bullying application is made, employers can take positive steps to address the risk of bullying, and to possibly avoid court orders being issued by the commission.
In dealing with anti-bullying application, the Commission’s key focus will be on resolving the matter in a way which enables normal working relationships to resume in a mutually safe and productive manner.
In the decision of Ms LP  FWC 763, a Food and Beverage attendant (Attendant) at a family owned restaurant in Adelaide alleged that she had been bullied by a group of individuals at the restaurant. In September 2014, she lodged an application with the Commission for an order to stop bullying under the anti-bullying provisions of the Fair Work Act 2009 (Cth) (FW Act).
At conciliation, the Commission made a number of recommendations, including that the restaurant develop a policy setting out appropriate behaviour standards in the workplace and establishing a process by which employees could raise concerns. The Commission also recommended that the restaurant conduct workplace bullying training for its managers and employees.
Following the recommendations made by the Commission, the restaurant held workplace bullying training and launched a new workplace bullying policy.
In April 2015, the Attendant lodged a new application for an order to stop bullying in the Commission, alleging that she had been subjected to unreasonable behaviour including:
- repeated verbal abuse, insults, name calling and the spreading of malicious rumours;
- exclusion from a staff meeting;
- a lack of clarity about supervision and management responsibilities in the workplace;
- pressure to behave in an inappropriate way; and
- being subjected to blame for stealing tips and bringing drugs onto the premises.
The employer opposed the application, asserting that there was no ongoing risk of bullying, pointing changes in personnel and positive measures that had been implemented.
Under section 789FF of the FW Act, the Commission can only make orders if it is satisfied that the worker has been bullied and that there is a risk that the worker will continue to be bullied.
Commissioner Hampton found that there was sufficient, relevant unreasonable behaviour towards the Attendant to establish that she had been bullied at work. 
However, when determining whether there was a risk that the worker will continue to be bullied at work, Commissioner Hampton had regard to the fact that some of the perpetrators were no longer in the workplace and positive measures had been implemented by the employer, including that:
- the restaurant had developed a policy that outlined appropriate workplace behaviour and had established a grievance procedure;
- the restaurant had provided training to all of its employees; and
- the restaurant had adjusted rosters to formally nominate a supervisor for each shift.
On this basis, Commissioner Hampton considered that if the Attendant returned to work, she would not be subject to bullying by the individuals or group concerned. In addition, if she had concerns regarding bullying in the future, a relevant and appropriate grievance resolution process was available to her.
Accordingly, Commissioner Hampton declined to issue any orders on the basis that he was not persuaded that the making of an order would be conducive to the constructive resumption of working relationships. Commissioner Hampton encouraged the Attendant to return to the restaurant and recognise that her anti-bullying applications had brought about a series of initiatives and “positive changes”.
The Attendant had sought restitution of all the leave that she had taken because of the bullying, and recovery of her costs. Commissioner Hampton said that while he would not discount the possibility of the Commission issuing anti-bullying order that re-credited leave taken, this question would need to be fully considered in the context of the FW Act and the National Employment Standards, which ultimately found that an order of that nature was not warranted.
Bottom Line for employers
The decision in this case demonstrates that a proactive approach to addressing workplace bullying can mitigate the Commission’s ability to issue anti-bullying orders.
Employers should review their workplace bullying policy to ensure that it is current and provides for a process whereby workers can raise concerns. Where there is room for improvement, employers should take steps to update their policy promptly. Employers should also consider conducting workplace bullying training for its workforce.
If faced with a bullying application in the Commission, employers should implement any other positive steps that will reduce the risks of bullying continuing the workplace, including taking measured and proportionate counselling and disciplinary action to reinforce the objects of any workplace bullying policy, ensuring that adequate supervision is in place to monitor workplace behaviour, and clarifying who workers can raise their concerns with (including publishing posters around the workplace).
Kaitlyn Gulle – Senior Associate, Lander & Rogers
Emily Bowly– Lawyer, Lander & Rogers The Attendant remained an employee of the employer but for a combination of medical and personal reasons was not attending for shifts during the conduct of the matter.
This article was originally published in the Winter 2016 | Workplace Relations & Safety Bulletin by Lander & Rogers, and republished with permission.
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