Putting a stop to workplace bullying and encouraging upstander culture continues to be a focus of employers promoting a positive and professional workplace. And the Fair Work Commission continues to make use of Stop Bullying Orders to protect employees where there is a real risk of continuation of bullying behaviour.
Stop bullying orders pursuant to s. 789FC of the Fair Work Act 2009 remain a powerful tool in the hands of the Fair Work Commission (FWC). Recent decisions indicate that Commissioners are mindful of tailoring the orders to the individual circumstances, and continue to carefully consider the risk of further bullying conduct in the workplace.
Application by Ms A [2018] FWC 4147
A Stop Bullying Order issued that addressed inappropriate communication such as excessive emails that amounted to bullying, but refused to restrict all communication between the managers of a residential complex and the chairman of the body corporate committee, noting that appropriate communication between the parties was necessary for the chairman of the body corporate to perform his role.
Ms A applied to the Fair Work Commission for an order to stop bullying. Ms A, a director of B Pty Ltd, a corporate entity engaged to provide management services to a residential complex, alleged bullying conduct against Mr C, the chairman of the body corporate committee for the residential complex. Ms A alleged multiple instances of bullying behaviour, the majority of which involved Mr C continuously sending excessive emails. Ms A also alleged that Mr C blamed the manager for a range of issues with the complex and interfered unreasonably in the letting business conducted by the manager. Ms A requested a stop bullying order to monitor Mr C’s behaviour on an ongoing basis and to direct Mr C to have no contact with the couple; to stay away from them and the manager’s residence; to stop all demands and unreasonable requests, including demands from other body corporate members, managers and owners; to stop using threatening and derogatory language; to stop saying things that impacted the reputation of Ms A and Mr D; and to stop making trouble between the owners and the couple.
Mr C maintained that the bullying conduct alleged by Ms A was reasonable management action taken in a reasonable way in compliance with Ms A’s management agreement. Mr C also asserted that the conduct Ms A complains of involved reasonable requests to undertake tasks within the scope of that agreement, and that MS A had unreasonably refused the requests.
After reviewing the evidence of both parties, the FWC issued orders that placed restrictions on the communication between Mr C and Ms A and Mr D. The orders required Mr C to attempt to contact the manager by telephone before sending an email in relation to a particular issue. The order also required Ms A to ensure that Mr D, who was providing the management services on behalf of B Pty Ltd, had a mobile telephone and could be contacted by members of the body corporate committee and residents of the complex in accordance with the management agreement.
The FWC concluded that these restrictions were sufficient to address the bullying conduct complained about by Ms A, and that further limitations upon Mr C were not appropriate and would affect his ability to perform his role as Chairman of the body corporate committee.
F.G. [2019] FWC 6283
An “appropriately crafted” Interim Stop Bullying Order issued where a risk of bullying conduct remained in spite of the named party being out of the workplace due to an apparent medical condition.
Mr F.G. sought a stop bullying order against Ms. O.O., a manager and co-director of his workplace, a retail services business conducted by a Corporate Trustee, and the application was strongly supported by the employer, but opposed by Ms O.O.
The FWC noted that the conduct alleged in the originating application represented serious bullying conduct within the meaning of the Act, and, if proven, was capable of providing the basis upon which Orders might be made and this included the future risk of bullying conduct in the workplace.
The FWC weighed up competing concerns of the parties, and noted the potential for Mr F.G. and Ms O.O. to have contact, notwithstanding her medical condition. The Commissioner also noted that the matter could not be resolved in the immediate future, but that the health and safety of all parties appeared to be at risk, and could be supported by “an appropriately crafted” Interim Order.
An Interim Order was thus issued with terms specifying the communication that would be permissible between the parties, and directing the employer to implement reasonable measures to ensure the parties were aware of their obligations.
Kim Hodgkins [2019] FWC 5589
Application for a Stop Bullying Order dismissed after the Applicant took a voluntary redundancy.
In this instance, the Respondent sought the dismissal of the application for a Stop Bullying Order, following the Applicant Ms Kim Hodgkins taking a voluntary redundancy in May of 2019, on the grounds that Ms Hodgkins’s application had no reasonable prospect of success due to the termination of her employment.
The FWC granted the dismissal, noting that the Commission has in a number of instances dismissed bullying applications in circumstances where the applicant has either been dismissed or resigned from their employment (e.g. see Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2014] FWC 3408 where the Commission found that, as the employment relationship had ended, there was no power to make an order to stop bullying and, as a consequence, the application had no reasonable prospect of success).
The FWC again relied upon the reasoning that once the employment relationship has ended, there is no longer the key consideration of a risk that the worker will continue to be bullied at work.
Paula Taylor [2019] FWC 1794
Detailed and specific Stop Bullying Order issues where the respondent demonstrated an unwillingness to address past bullying behaviour and a real risk of bullying remained
Paula Taylor sought an order to stop bullying against Mrs Taylor’s employer Hoad Water Cartage Pty Ltd (Hoad Water Cartage or the employer) and Mr H. Mrs Taylor was and remained employed by Hoad Water Cartage Pty Ltd on a part time basis as Finance and Admin. Manager and HR Manager. Mrs H was the contact person for the employer.
Hoad Water Cartage is a private family company, jointly owned by husband and wife. An acrimonious matrimonial dispute since early 2018 was also before the Federal Circuit Court of Australia. The marital dispute had led to some blurring of boundaries between the personal and professional relationship, and it the dispute between Mr and Mrs H also resulted in Mrs Taylor becoming collateral damage in the marital dispute. Mr H became increasingly critical of Mrs Taylor, including by levelling criticism of her professionalism which she regarded as personal and insulting. Mr H believed that Mrs Taylor was involved in a conspiracy with his wife against him and his business. Upon the marriage breakdown, in-person communication on business matters between Mr H and Mrs Taylor ceased. Each communicated only by telephone or email.
Mrs Taylor sought orders around whom she reported to, what Mr H instructed her and talked to her about, and a retraction of the two disciplinary warnings, and training for Mr H on anti-bullying.
Mr H was found to have engaged in serious bullying conduct (including rudeness and abuse, exposing Mrs Taylor to private vitriol, exclusionary behaviour; unreasonable work demands and scrutiny, and unreasonable threats to dismiss) towards Mrs Taylor over a prolonged period.
The FWC noted this was initially driven by Mr H’s unwillingness to provide full and proper respect for Mrs Taylor’s role and her position as a female manager. Once the matrimonial acrimony between Mr and Mrs H spilled over into the workplace in 2018, Mr H’s bullying conduct was driven by a lack of objectivity to the near impossible position he and Mrs H had placed Mrs Taylor in light of their matrimonial conflict.
The Commissioner found that Mr H engaged in bullying behaviour by wrongfully alleging misconduct by Mrs Taylor and disciplining her by issuing formal warning and placing her at risk of termination. Given this past behaviour, there was a real risk that Mr H would continue to take unreasonable management action against Mrs Taylor either directly or through third parties, necessitating the stop bullying orders.
The Commissioner issued very detailed and specific order in this case, indicating that an unwillingness to remediate bullying behaviour will mean that Commission imposes more detailed and specific orders, relating to communication method, tone, and specific words/phrases not to be used.
