“Stop Bullying” Orders – Does the Behaviour Need to be “Repeated”?

September, 2015

By Clayton Payne, Special Counsel

Does bullying behaviour need to be repeated to enable the Fair Work Commission to make “stop bullying” orders?

This issue was recently dealt with by the Commission in the matter of Singh.

The Facts

The worker alleged that he was bullied by another employee in his workplace. The worker was engaged by another company which had been contracted to work in the relevant workplace, and the bullying behaviour was allegedly engaged in by an employee of the host employer (the employee).

The worker claimed that on 21 December 2014, the employee acted unreasonably towards him and that he was physically and verbally assaulted. The worker also conceded that the conduct only occurred on one occasion.

The worker sought an order to stop bullying under the Fair Work Act.

In reaching his findings, Commissioner Hampton found that to make appropriate orders:

“… the Commission must be satisfied that there was conduct whereby an individual (or a group of individuals) has repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member, and that this behaviour created a risk to health and safety”.

While the Commissioner found that the incident which occurred on 21 December 2014 would “… be objectively unreasonable and such as to create a risk to health and safety”, there was no evidence that there were any other relevant incidents capable of constituting “repeated” unreasonable behaviour.

The Commissioner declined to make any stop bullying orders, however, did note that the worker might have other avenues open to him to pursue unlawful discrimination and adverse action claims.

Conclusion

This decision clearly demonstrates that while evidence of relevant unreasonable conduct must create a risk to health and safety, it must be repeated before the Fair Work Commission will make stop bullying orders.

That aside, the decision also demonstrates that even where, for example, unreasonable behaviour might not be “repeated”, it may give rise to other claims against an employer.

As we have stated in previously alerts, having robust policies and procedures in place to deal with workplace harassment and bullying, backed up with appropriate staff education, will go a long way to prevent applications of this nature arising in the first place.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au




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