​Anti-bullying rulings ‘difficult’ and ‘invasive’

Peter Godfrey
by |
The Fair Work Commissions’ (FWC) first ever anti-bullying orders show that they could potentially create invasive and difficult workplace conditions, an employment lawyer has told Australasian Lawyer

Gadens’ employment partner Nicholas Linke said that such rulings could be difficult to manage and enforce due to their very specific nature.

In March the FWC made its first ‘stop bullying’ orders in a case where an employee was found to have bullied another applicant, which included the following strict conditions:
  1. The employee shall complete any exercise at the employer’s premises before 8.00a.m.
  2. Shall have no contact with the applicant alone.
  3. Shall make no comment about the applicant’s clothes or appearance.
Linke said that the orders, which were designed to keep a pair of warring colleagues far apart, could be very impractical in everyday workplace situations.
   
“I think it’s clear from the sorts of orders that we have seen, that they have the potential to be very invasive.  It can make things unworkable for an employer,” Linke said.
 
“It’s one thing to have a situation where employers need to keep people apart, but with the force of a FWC order, it’s elevated to the next level.”

Linke said that the commission’s ruling shows that employment lawyers should keep advising employers to redouble their efforts to make sure they have a proper policy to deal with bullying quickly in order to keep situations away from the FWC.

“If the FWC is satisfied that the employer had a proper bullying policy in place and that it had been dealt with internally, it would most likely not make any stop-bullying orders,” Linke said.   

The FWC has released its first quarterly report on the anti-bullying jurisdiction, which revealed that it dealt with 151 claims. 

Amongst these, 23 matters were withdrawn early in the process, 16 were resolved during proceedings, five were withdrawn prior to proceedings and four were withdrawn after proceedings but before a decision. 

A number of applications were also dismissed on jurisdictional or other preliminary grounds.

The original prediction of 67 bullying complaints under the federal government’s new anti-bullying laws, which came into effect in January, has failed to materialise.

However, Linke said that it was still too early to gauge the full impact of the new laws, saying that it was best to adopt a “wait and see” position.

“We haven’t seen the worst of it yet.  We still need to  see more work coming out of the FWC so we can see the kinds of orders that are being made.”

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