Workplace bullying: what is available to help?

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The anti-bullying jurisdiction of the Fair Work Commission, introduced in January 2010 with the major amendments to workplace relations system by Prime Minister Rudd and Minister Gillard, is predicated upon the issue of orders to prevent on-going bullying. The Commission’s anti-bullying panel of members does not have the power to order compensation for bullying.

That the jurisdiction must necessarily cease when an employment relationship comes to an end is therefore reasonably self evident. If not, it is made abundantly clear in the following passage from a recent decision of the Commission in a bullying case.

“In G.C. 1 Commissioner Hampton considered an application for an order to stop bullying in circumstances where the Applicant had been dismissed. He made the following observations in relation to a risk of further bullying and the capacity of the Commission to make an order in such circumstances:

[165] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ), Gostencnik DP was dealing with an anti-bullying application where an applicant, Ms Shaw, had been dismissed by the employer. The Deputy President found as follows:

“[15] As s.789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”

[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker.

[167] In this case, there is no suggestion that continuing risk of bullying at work will relevantly arise in the absence of an ongoing employment relationship between the parties. That is, there is no basis, in the absence of a continuing employment relationship between the parties, for the applicant to be in the relevant workplace as a worker. As I am not satisfied that there is any such future risk, even if I had concluded that bullying behaviour had occurred within the statutory meaning, there is no basis under the Act to issue any orders arising from this particular application.

[23] In the matter before me the applicant, Mr Michael, has resigned. The analysis of the decision of Commissioner Hampton however remains apposite in a case such as this. The matter to be determined is if, as a worker, Mr Michael will continue to be bullied at work by the individuals found to have bullied him.

[24] Mr Michael resigned his employment with BKI. He will no longer work with the individuals named in his application and there is no prospect he will work with them again. This matter is not intertwined with an unfair dismissal application where the outcome of that application may result in the applicant being reinstated into the workplace.

[25] For these reasons and in the absence of any ongoing employment relationship between Mr Michael and BKI there is no risk of Mr Michael being bullied at work (that is, BKI) in the future. Even if I had concluded that Mr Michael had been bullied at work in the past he will not bullied at work in the future. The jurisdictional prerequisite for making an order is therefore not met and an order to stop bullying cannot be made.

Re Michael (2018) FWC 905 delivered 16 February 2018per- Bissett C

The anti-bullying jurisdiction of the Fair Work Commission, introduced in January 2010 with the major amendments to workplace relations system by Prime Minister Rudd and Minister Gillard, is predicated upon the issue of orders to prevent on-going bullying. The Commission’s anti-bullying panel of members does not have the power to order compensation for bullying.

That the jurisdiction must necessarily cease when an employment relationship comes to an end is therefore reasonably self evident. If not, it is made abundantly clear in the following passage from a recent decision of the Commission in a bullying case.

“In G.C. 1 Commissioner Hampton considered an application for an order to stop bullying in circumstances where the Applicant had been dismissed. He made the following observations in relation to a risk of further bullying and the capacity of the Commission to make an order in such circumstances:

[165] In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another (Shaw v ANZ), Gostencnik DP was dealing with an anti-bullying application where an applicant, Ms Shaw, had been dismissed by the employer. The Deputy President found as follows:

“[15] As s.789FF(b) makes clear, I must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals. Therein lays the difficulty for Mr Shaw. It seems to me that I have no power to make an order to stop bullying unless I can be satisfied relevantly that there is a risk that at work Mr Shaw will continue to be bullied by the individual or group of individuals identified in his application.

[16] It is clear that Mr Shaw is no longer employed by ANZ. The employment relationship has ended. That Mr Shaw is taking steps to seek a remedy in relation to his dismissal and that that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer and is speculative and uncertain. It seems to me clear that there cannot be a risk that Mr Shaw will continue to be bullied at work by an individual or group of individuals identified in his application because Mr Shaw is no longer employed by ANZ and therefore is no longer at work.

[17] It necessarily follows that I do not have power to make an order to stop bullying and, as a consequence, I am satisfied that Mr Shaw’s application has no reasonable prospect of success.”

[166] With respect, I agree with the Deputy President that the import of s.789FF(1)(b)(ii) is that for an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). For my part, where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker.

[167] In this case, there is no suggestion that continuing risk of bullying at work will relevantly arise in the absence of an ongoing employment relationship between the parties. That is, there is no basis, in the absence of a continuing employment relationship between the parties, for the applicant to be in the relevant workplace as a worker. As I am not satisfied that there is any such future risk, even if I had concluded that bullying behaviour had occurred within the statutory meaning, there is no basis under the Act to issue any orders arising from this particular application.

[23] In the matter before me the applicant, Mr Michael, has resigned. The analysis of the decision of Commissioner Hampton however remains apposite in a case such as this. The matter to be determined is if, as a worker, Mr Michael will continue to be bullied at work by the individuals found to have bullied him.

[24] Mr Michael resigned his employment with BKI. He will no longer work with the individuals named in his application and there is no prospect he will work with them again. This matter is not intertwined with an unfair dismissal application where the outcome of that application may result in the applicant being reinstated into the workplace.

[25] For these reasons and in the absence of any ongoing employment relationship between Mr Michael and BKI there is no risk of Mr Michael being bullied at work (that is, BKI) in the future. Even if I had concluded that Mr Michael had been bullied at work in the past he will not bullied at work in the future. The jurisdictional prerequisite for making an order is therefore not met and an order to stop bullying cannot be made.

Re Michael (2018) FWC 905 delivered 16 February 2018 per- Bissett C

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