By Clayton Payne
If my business becomes the subject of a bullying complaint in the Fair Work Commission, will any proceedings be conducted in private? Will the names of myself and the business be kept out of the public domain?
A recent decision of the Fair Work Commission, has again highlighted the need for employers to attempt to deal with bullying complaints promptly and fully at the workplace, before matters become the subject of proceedings.
In Hankin v. Plumbers Supplies Co-Operative Limited and Ors, the respondent employer and individuals, sought orders that their names and addresses not be published. They also sought that any proceedings be conducted in private, and that the whole of the decision, any orders, and all related proceedings be anonymised by the Commission.
The respondents’ representative initially argued that as a number of allegations had been raised against individual employee respondents about behaviour occurring outside of the workplace and outside of work, that had the potential to damage the reputation of those individuals (and presumably the respondent employer), confidentiality should be ordered.
Relevant orders were initially made, but the decision was to be subject to a consideration of the evidence as it unfolded.
The applicant employee later opposed the maintenance of the orders (apart from any order that allowed the addresses of the individual participants to remain suppressed).
In reaching his decision, Commissioner Lewin referred to the decision of Commissioner Bissett in the matter of Justin Corfield, where that Commissioner found:
“As was explained in Smidmore (an earlier decision of the NSW Industrial Relations Commission), mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application”.
In determining that confidentiality orders should not be granted, Commission Lewin found that:
“ … the mere embarrassment, distress or damage that may be caused to the Respondents by the publication of these allegations is not sufficient to displace the presumption in favour of the open administration of justice”.
This decision demonstrates that bullying complaints which are dealt with by the Fair Work Commission, have the ability to enter into the public domain, potentially causing embarrassment and reputational damage to an employer and its employees.
What is more, the decision provides a good reason for employers to have sound policies in place dealing with allegations of bullying, and to act on such complaints, through investigations and the disciplining of employees. If such actions occur, it is quite possible that not only will the Fair Work Commission not see the need to hear a matter or make orders, but a substantial complaint may not arise in the first place.
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