By Clayton Payne, Special Counsel
As discussed in previous Alerts, for some time the Fair Work Commission has had the jurisdiction to deal with applications and make orders with respect to allegations of workplace bullying.
Earlier this month, in the matter of C.F. and N.W. and Company A and E.D., the Commission handed down its first formal findings since the establishment of that jurisdiction.
Commissioner Hampton found that two employees of a small real estate business had been subjected to bullying by a property manager employed by the real estate business in which they worked.
The Commissioner found that the property manager’s conduct constituted bullying behaviour under the Fair Work Act 2009 (the FW Act) and issued stop bullying orders against both the property manager and her employer.
Ms C.F. and Ms N.W. (the employees) each made an application for an order to stop bullying under the FW Act, against Ms E.D. (the property manager). The employees alleged that the property manager’s conduct included:
The employees sought the further intervention of the Commission after their employer conducted an informal investigation into their allegations.
Following the investigation, the property manager, with the support of the employer, resigned from her position, but subsequently accepted an equivalent position with a related company of the employer. While the related company operated from a different location, it was claimed by the employees that in the normal course of business, there was a possibility of an interaction between them and the property manager.
Consequently, the employees claimed that they felt unsafe to return to their workplace. They both also alleged that they were undergoing medical treatment and had made claims for workers’ compensation. During this time, the property manager was “seconded” back to the employer on a short-term basis.
The Commissioner found that in the circumstances bullying conduct had taken place for the purposes of the FW Act, and was satisfied that, given the structure of the business, there was a real risk that the employees would continue to be bullied at work by the property manager, notwithstanding her new place of employment.
In light of his findings, the Commissioner made orders by consent for:
The Commissioner noted that the orders, particularly those relating to future workplace conduct and procedures, were “… consistent with the purpose of such orders as contemplated by the (FW) Act” and were made “… conducive to the resumption and continuation of on-going safe and productive working relationships between the (employees) and the employer.”
This decision demonstrates the need for employers to have robust policies and procedures in place dealing with workplace harassment and bullying, no matter how big or small their businesses.
Therefore, if you are involved in a business with employees, it is something which you should be aware of.
Had such policies and procedures been put in place and acted upon in relation to the above decision, it is likely that the bullying complaint would not have advanced to a position where the Commission was required to make formal findings.
The decision also suggests that if there are circumstances in which an investigation into alleged workplace bullying is required, an employer may need to consider the impartiality of those charged with conducting the investigation, and whether it might to better to arrange for a third party such as lawyer, to undertake that investigation.
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