Ms LP [2016] FWC 763
The Fair Work Act 2009 (Cth) (FW Act) provides that the Fair Work Commission (the Commission) may only make orders to stop bullying if it is found that the worker has been bullied at work and if there is a risk that the bullying will continue.
The FW Act also sets out a list of factors that the Commission is to consider if it was to make such an order. For example, the factors include whether there were any procedures in place and available to resolve workplace grievances or disputes.
In Ms LP, an application for an order to stop bullying was lodged by LP (the Applicant) who was employed as a Food and Beverage Attendant by a family owned restaurant in South Australia (the Employer). The Applicant alleged bullying conduct by the Manager/Co-Director/Owner, the Accounts Clerk and a lawyer acting on behalf of the Employer as well as by the former Head Chef and former Supervisor (the Respondents).
The matter was subject to preliminary and conciliation conferences where the Commission made a number of recommendations, including:
The matter proceeded to a hearing where it was held that some allegations of unreasonable conduct had taken place. At the time, Commissioner Hampton sought submissions as to whether stop-bullying orders were required given that some of the individual Respondents were no longer employed, that the Employer had taken measures which would reduce the risk of bullying conduct and that the Applicant had not returned to work for some time.
The Applicant submitted that there was a risk that the unreasonable conduct would occur in the future as some of the conduct took place after anti-bullying policies were implemented. Accordingly, she argued that stop bullying orders should be made by the Commission. The Employer and the Respondents opposed the orders sought by the Applicant.
Commissioner Hampton ultimately declined to make stop-bullying orders because they were not necessary and would not assist in resuming working relationships. He noted that the Employer had now implemented positive measures including the grievance procedure, with anti-bullying training provided to all employees (and expected to be provided to all future employees) and adjusted rosters. In declining to make the orders, Commissioner Hampton did recommend that some of the Applicant’s proposals which included formalising job descriptions and displaying anti-bullying material for employees, be adopted.
As a matter of good practice, it is important that employers have in place an anti-bullying policy which specifies what is and what is not bullying behaviour, how to make complaints about alleged bullying conduct, what is reasonable management action and what action the employer will take in response to complaints of workplace bullying.
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