The new bullying laws have now well and truly come into effect and the Fair Work Commission has been exercising its powers to stop workplace bullying.
The first Fair Work Commission conference made the new laws. The facts of the dispute which resulted in the first conference lead by the Fair Work Commission, including the names of the employer, alleged bully or bullied employee have not been identified by the Fair Work Commission.
Orders Issued by Fair Work Commission
The Fair Work Commission issued orders that the alleged bully:
- complete any exercise at the employer’s premises before 8:00am;
- make no comment about the bullied employee’s clothes or appearance;
- have no contact with the bullied employee;
- not send any emails or texts to the bullied employee except in emergency circumstances; and not raise any work issues with the bullied employee without notifying management
- the aggrieved employee is not to arrive at work before 8.15 am.
Penalties for Contravention
Contravention of the above order could result in a penalty of up to $10,200.00 and although we are yet to see a penalty imposed, it will be interesting to see how parties subject to such orders will manage to adhere to the orders, practically speaking.
It is difficult to make any comment about the practical implications of such orders on the employer’s business as the facts of the relevant anti-bullying application are unknown. However, it may be that a further conference will be required to take place by the Fair Work Commission to address practical issues which simply can’t be avoided, namely:
- How are the orders impacting the daily operations of the employer’s business?
- What are the “emergency circumstances” allowed by the orders?
- Are the orders workable in practice?
- How much information needs to be communicated to management prior to raising issues with the aggrieved employee?
Dismissal of Bullying Claims
It is encouraging for employers to know that applications which are brought by an employee which include multiple defects can be dismissed. For example, on 12 February 2014, the Commission dismissed a workplace bullying claim on the basis that the application was defective in that it failed to respond to key questions pertaining to the allegations. Furthermore, the aggrieved employee failed to pay the requisite application fee. It is important to note that the aggrieved employee was notified of the deficiencies and provided the opportunity to amend the application. When the aggrieved employee failed to amended it was dismissed for failure to comply with the relevant legislative requirements.
What can employers learn?
The message to employers is now stronger than ever. It’s vital to know how to investigate and respond to workplace bullying allegations and be prepared to take steps to prevent it altogether. No sensible employer would want to be subjected to such orders given the practical challenges which arise for the business as a result, however necessary they may be.
If you have any questions on workplace bullying or employment law, please don’t hesitate to contact me.
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