Pursuant to the Fair Work Act 2009 (Cth), employees can apply to the Fair Work Commission for an order to stop workplace bullying.
An order to stop bullying will be made where a worker has been bullied and there is a risk that the worker will continue to be bullied. An application will be refused if there is no real risk that the bullying will continue.
Recently, the Fair Work Commission overturned an application for a stop bullying order. A summary of the case is outlined below.
Summary of Recent Case
In June 2022, the Fair Work Commission determined the matter of Damian Stephen [2022] FWC 1667.
Mr Stephen (the employee) had previously made an application for a stop bullying order against a fellow employee, Mrs Fitzgibbons. The application was accepted and an order to stop bullying was made in September 2020.
Mrs Fitzgibbons was ordered to:
(a) Complete a workplace bullying and harassment course;
(b) Apologise in writing and undertake not to bully Mr Stephen in the future; and
(c) Speak directly to Mr Stephen in the event that she had an issue with him in future.
Prior to this, Mrs Fitzgibbons had privately proposed an undertaking to Mr Stephen stating that she would not bully him in the future and that she would not initiate any contact with him. This undertaking was not adopted.
In 2022, Mrs Fitzgibbons applied to the Fair Work Commission to have the order dismissed. Mrs Fitzgibbons was an elderly woman well into her nineties and Mr Stephen was a middle-aged man employed in a more senior managerial role.
Ultimately, the Fair Work Commission decided to set aside the previous order. The reason for doing so was that the substance of the application had no reasonable prospects of success. This was because there was no risk of the bullying continuing, as Mr Fitzgibbons was an elderly lady and had undertaken to stop any unwarranted conduct.
The Commission stated that the application was unnecessary in these circumstances. The Commission did not appreciate the unnecessary time, cost and delay that had been caused as a result of Mr Stephen’s application.
The Commission went on to say that there is no limitation which prevents new applications to stop bullying being made in the future. Workers and employees are entitled to make a fresh application if new issues arise.
Key Takeaways
The anti-bullying regime under the Fair Work Act is designed to provide remedies and promptly deal with issues of bullying in the workplace.
Stop bullying orders will only be appropriate in instances where there is a risk that bullying with continue in the workplace.
If you are an employer who has a question regarding orders to stop workplace bullying in your business, please contact Aaran Johnson or Simon Kumar to discuss how Marsdens can assist your business.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
