By Clayton Payne, Special Counsel
Does the fact that a worker has not worked for an employer for a period of time stop a bullying complaint proceeding in the Fair Work Commission?
What should employers do to mitigate the risks of complaints to the Commission being made?
These matters were recently considered by the Commission in Simounds.
The worker had been casually employed by the employer, an event organisation and production company as a ‘roadie’, for 28 years. This arrangement was described by the Commission as “a series of discrete engagements”.
The worker made an application for an order to stop bullying, based on treatment he was allegedly subjected to in the course of his employment.
The employer maintained that the worker had not been offered a shift in the previous 10 months, however had not actually been dismissed. It was contended by the employer that its failure to offer the worker shifts was a deliberate decision, as to do otherwise, would have been in direct contradiction of its policy not to engage casual employees who were concurrently working for direct competitors.
The worker had failed or was late in complying with directions given by the Commission. This included a direction to file an index of the documentation the worker intended to rely on in his application.
When invited to ‘show cause’ as to why the worker’s application should not be dismissed, the worker submitted that the employer had failed to present evidence to refute his allegations, other employees (namely the worker’s witnesses for the complaint) would be “tormented and extorted” if the application was not dealt with, and that his personal circumstances and lack of representation made compliance with directions difficult.
The employer argued these were not adequate explanations for the worker’s failures and late compliance with the Commission’s directions.
The Commission found that despite the worker’s failure to meet deadlines and his apparent unsatisfactory reasons for non-compliance etc., the application would not be dismissed.
The Commission also considered whether the application had any reasonable prospect of success. Despite the fact that the worker had not been offered a shift for 10 months, the Commission found that in light of the employer’s apparently questionable but repeated assertion that the worker had not been dismissed, it was unable to conclude that there was no risk of a continuation of bullying.
As such the Commission refused to dismiss the application.
This decision highlights the fact that employers can be required to meet bullying complaints in the Fair Work Commission, even where the employee in question has not physically worked for the employer for some time. In this case, the employer was not in a position to have a complaint dismissed, even where the worker had apparently not complied with Commission orders, because the Commission could not conclude that there was no risk of a continuation of bullying.
All employers should be aware that bullying complaints of this nature can be made against them, and that they can be time consuming and potentially expensive matters to deal with.
Should an employer have robust policies and systems in place which deal with bullying complaints, the prospect of such a matter advancing to the Commission is substantially reduced.
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