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When Stop Bullying Orders aren’t necessary

By Jeff Salton on February 9th, 2018

 

Any employee who feels bullied at work can lodge an application with the Fair Work Commission (FWC) for an order to stop bullying. The FWC must begin dealing with an application within 14 days of receiving it.

The FWC can make any order it considers appropriate to prevent a worker from being bullied at work, aside from ordering reinstatement, the payment of compensation or a financial penalty.

However, there must be a risk of continued bullying at work for the FWC to make an order to stop the bullying.

In the following case, the company investigated the claims by the worker and took steps to remove the threat of the bullying behaviour. But the worker submitted to the FWC that the company’s actions were insufficient and he still felt at risk.

The case

In Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen (2017), the worker, Mr Kandelaars, commenced proceedings in the FWC against his employer, Murrays Australia Pty Ltd (Murrays) and Andrew Cullen, seeking orders to stop the bullying he had been subjected to.

Mr Kandelaars alleged his manager, Mr Cullen, had engaged in bullying conduct against him. Murrays indicated the stop bullying orders were not necessary given the steps it had taken to reduce the risk of bullying, which were:

  • substantially changing Mr Cullen’s role in response to the bullying allegations;
  • removing Mr Cullen’s responsibility for the supervision of drivers, investigation of incidents, and assessment and disciplining of drivers.

Verdict

Commissioner Roe had to decide whether a stop bullying order was necessary, saying: “The role of the Commission in these matters is not to punish but to take steps necessary to stop bullying.”

Section 789FF(1)(b) of the Fair Work Act 2009 (Cth) requires the FWC to be satisfied that there is a risk that a worker will continue to be bullied at work by an individual or group before it makes anti-bullying orders.

Commissioner Roe held that Murrays’ actions were sufficient, save for a recognition that bullying had occurred. The FWC held that recognition of bullying was important as it:

  • sends a strong message to Mr Cullen and hence should reduce the likelihood of any future bullying;
  • would assist the drivers affected by Mr Cullen’s conduct to have this acknowledged; and
  • would assist management to be more supportive of the drivers and to provide them with the assistance required for them to regain their confidence.

As such, the FWC declined to make a stop bullying order saying, “an order is not necessary or appropriate in the circumstances of this case. Should further unreasonable behaviour occur, a new application can be made.”

Lessons for employers

Kelly Godfrey from Employment Lawyers Australia says that when faced with bullying in the workplace, it is important employers take action to eliminate the bullying as much as possible.

“This will help reduce the risk of an anti-bullying application being made to the FWC, and if one is made, assist in defending an application for an anti-bullying order,” she says.

“By taking this preventative action rather than having orders imposed by the FWC, the employer can decide what action is taken in the circumstances.”

She says employers should:

  • have procedures in place for employees to raise bullying complaints;
  • properly investigate bullying complaints; and
  • take active steps to reduce the risk of further bullying through disciplining the employee, providing further training, changing the perpetrator’s position or reporting lines, if appropriate, and providing counselling and assistance to those affected by the bullying.

As you would be aware, workplace bullying is widespread in Australia and often overlooked by employers and HR teams until it’s too late. So don’t be one of them. To help you to avoid bullying occurring in your workplace, the Employment Law Practical Handbook has just updated its Bullying chapter according to the latest in legislation, best practice and case law. It covers all the essentials and is one of the most important chapters in your Handbook.

Bullying often occurs between workers or management and workers. Sometimes, performance management can be interpreted as bullying by some workers. As an employer, you need to be sure that all actions you take is reasonable because you need to have a solid defence if a bullying claim is made against you.

Order the Employment Law Practical Handbook on an obligation-free trial and check out the Bullying chapter and the other 70-plus chapters that cover the A-Z of workplace law – all written in plain English by the employment law experts.

 





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