The Fair Work Commission (FWC) has handed down its first formal decision in relation to an anti-bullying order. This is only the second case since the introduction of the anti-bullying laws where orders have been granted under section 789FD of the Fair Work Act 2009 (FW Act). This is the first decision to provide us with more guidance in relation to when the FWC will grant anti- bullying orders.
The applicants in this matter were and remain employees of a small real estate business. They alleged that they were subject to the following behaviour by a Property Manager, Ms ED:
- belittling conduct;
- swearing, yelling and otherwise inappropriate language;
- daily interference and undermining of their work;
- physical intimidation;
- attempts to incite the applicants to victimise other staff members; and
- threats of violence.
The employer conducted an informal investigation in relation to the allegations and unsuccessfully attempted to mediate the matter between the parties.
Ms ED resigned from her employment but took on a role with a related company. Despite operating from a different location, there was potential for her to interact with the employees and on one occasion since resigning, she was seconded back to the employer to provide short-term assistance.
The evidence of the applicants and Ms ED revealed that the conduct in question was “indicative of a workplace culture where unprofessional and unreasonable conduct and interactions had taken place”. The Commissioner considered that this conduct had created a risk to the health and safety of a number of workers.
The FWC found that there was a real prospect that the applicants and Ms ED would, without orders, have future work related interactions. The Commissioner imposed a number of preventative orders (that will remain in effect for two years), including that:
- Ms ED is not to make contact with the applicants and the applicants will not make contact with Ms ED;
- Ms ED will not attend the premises where the applicants are employed whilst they are employed and either of the applicants have evident work capacity;
- the applicants are not to attend the premises of the related company whilst Ms ED remains employed by that employer; and
- the employer will provide anti-bullying training and an updated anti-bullying policy and complaints handling procedure to all of its staff.
What does this mean for your organisation?
The decision confirms that the FWC can and will make prescriptive orders in an attempt to stop bullying conduct if it considers that the risk of bullying will continue at the workplace. The orders made in this case reflect the wide range of powers the FWC has to impose restrictions on the persons who have bullied individuals or groups of individuals at work, as well as their employers.
The decision is a strong reminder of the importance of proactively addressing a workplace culture where bullying has historically been tolerated. This can be achieved by:
- implementing (and regularly reviewing) a workplace bullying policy that expresses the organisation’s commitment to preventing bullying, outlines the expectations of behaviour and provides avenues for redress;
- providing workers with regular training in relation to the workplace bullying policy;
- ensuring that managers know what to do if they see bullying happening in the workplace and/or if they receive informal complaints in relation to bullying; and
- ensuring that the organisation’s message with respect to bullying comes from senior members of the organisation (e.g. the CEO) to demonstrate the organisation’s commitment in this respect.
Implementing measures will not only help establish a respectful workplace, but will demonstrate fulfilment of the obligation on businesses to ensure the health, safety and welfare of workers at work.