Can a bullying claim continue after a worker has been sacked?

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In a recent case, the Fair Work Commission decided that although sacked workers’ anti-bullying claims are likely to fail, it may be appropriate to hold such claims “in abeyance” if the worker is “actively” contesting their dismissal.

As with all anti-bullying claims, the details of the case including the names of the employer, alleged bully or bullied employees have not been identified by the Fair Work Commission. However, some relevant facts about this case have been made public.

Background

The case involved a former restaurant worker who made a general protections application in the Fair Work Commission. The worker also lodged his anti-bullying claim, three days after receiving his employer’s termination letter, but 11 days before his dismissal took effect.

The general protections application did not resolve at a conference before the Fair Work Commission and after the conference, the worker did not take any steps to progress the general protections application.

The employer asked the Fair Work Commission to throw out the bullying claim, arguing that:

  1. the worker was no longer an employee;
  2. the worker hadn’t raised the allegations before being notified of his sacking; and
  3. there was no risk of future bullying because the worker was no longer in the workplace.

Decision

The Fair Work Commission dismissed the anti bully application on the basis that it had no reasonable prospects of success because the worker was not “actively contesting the general protections application”.

Furthermore, it was unlikely that the bullying would occur again because the worker would first have to be successful in the claim for general protection from adverse action and then, an order for reinstatement of employment would also have to be made as part of the worker’s compensation.

Please feel free to contact me if you have any questions about anti-bullying claims.

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