Last week, the Fair Work Commission (FWC) published its first substantive decision in respect of an application by two employees to stop bullying in their workplace.
The matter of C.F.  FWC 5272 involved two Applicants, Ms C.F. and Ms N.W. each making an application for an order to stop bullying pursuant to section 789FD of the Fair Work Act 2009. The Applicants were, and remain to be, employees of a small real estate business and alleged that they had been bullied by Ms E.D., a Property Manager engaged by the employer. Names were not published for the purpose of maintaining the parties’ privacy.
The Applicants alleged that Ms E.D.’s bullying conduct included:
- Belittling conduct;
- Swearing, yelling and use of otherwise inappropriate language;
- Daily interfering and undermining the Applicants’ work;
- Physical intimidation and “slamming” of objects on the Applicants’ desks,
- Attempts to incite the Applicants to victimise other staff members; and
- Threats of violence.
In response, the employer contended that at least one of the Applicants was provided the opportunity to put their allegations in writing, but failed to do so, and that Ms E.D. had, in effect, been moved to another location to ensure no work related contact. The employer contended that the substance of the allegations were denied by Ms E.D. and that the Applicants themselves had acted unreasonably in certain respects.
The employer had previously conducted an investigation into Ms E.D.’s conduct and attempted mediation. This led to Ms E.D. resigning from her employment and taking up an equivalent position with a related company. It is noteworthy that while the related company operated from a different location, Ms E.D. would regularly interact with her prior workplace and had been “seconded” back to the employer on a short-term basis.
Commissioner Hampton concluded that bullying conduct had taken place. Further, Commissioner Hampton found the evidence to be “indicative of a workplace culture where unprofessional and unreasonable conduct and interactions had taken place and that such had created a risk to the health and safety of a number of the workers involved”. It followed that the parties consented to the following orders being made:
- that the Applicants and Ms E.D. do not approach each other and that they not attend the (other) business premises;
- that the employer establishes and implements appropriate anti-bullying policies, procedures and training, which will include confirming appropriate future conduct and behaviour.
Commissioner Hampton justified the FWC’s orders as follows:
In my view, the orders, particularly those dealing with future workplace conduct and providing appropriate procedures to make and deal with complaints, are genuine preventative orders in the context of this workplace and are consistent with the purpose of such orders as contemplated by the Act.
The orders will remain in place for two years. In the event that one or both of the orders are breached, a maximum penalty of $51,000 for a corporation applies, or $10,200 for an individual.
The decision is an important one for employers as it highlights that the FWC will not only seek to address the issues between individuals, but will also take an organisational approach when making orders. The publication of this decision serves as a good opportunity to review your own anti-bullying policies and procedures – you don’t want your business making the headlines for this reason!
Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about bullying in your organisation.