Business owners have long held the view that the anti-bullying legislation has no real “teeth” and investment in legal advice is not cost effective. Although there is still no compensatory

element legislated directly for bullying in the workplace, a breach can still lead to orders which can lead to orders to force the development of internal policies and procedures and training
as well as the added cost of litigation in the Commission.
In CF & NW v Company A & ED [2015] FWC 5272 (CF & NW v Company A & ED), the Commission found a company to be in breach of the 2014 anti-bullying amendments to the Fair Work Act 2009 (Cth) (FW Act) and ordered that it reform its workplace. This judgement should serve as a notice to Employers to ensure that they have effective policies and procedures when there have been allegations of workplace bullying. It is important to follow these policies and procedures to make it clear that bullying is not tolerated in the workplace and to protect your employee’s workplace health and safety.

Workplace Bullying under the FW Act

Section 789FD of the FW Act provides that a worker is bullied at work when an individual or group of individuals behaves unreasonably towards the worker and that behaviour causes a risk to health and safety. Reasonable management action does not constitute bullying.

Under s 789FF, the Commission may make orders it deems appropriate to prevent the worker from being bullied further.

CF & NW v Company A & ED

In this case, two employees of a real estate agency made an application to the Commission under the anti-bullying provisions, alleging that a property manager at the agency had engaged in bullying behaviour, including:

  • Belittling conduct;
  • Swearing, yelling and use of otherwise inappropriate language;
  • Daily interfering and undermining the applicants’ work;
  • Physical intimidation and “slamming” of objects on the applicants’ desks,
  • Attempts to incite the applicants to victimise other staff members; and
  • Threats of violence.

Informal internal investigations and workplace mediation did not resolve the matter. The Property Manager resigned from her employment, but took up an equivalent position at a related company. She was soon seconded back to the workplace where the bullying was alleged to have occurred.

At the time of the hearing, the applicants were on a leave of absence from the company. They had lodged claims for workers’ compensation and were seeking medical treatment.

Ruling

The Commission found that the Employer and the Property Manager were in breach of the workplace bullying provisions under the FW Act, as the Property Manager had engaged in repeated unreasonable conduct that constituted a risk to health and safety.

Given that the Property Manager had so quickly returned to the workplace where she had engaged in bullying behaviour, the Commission ordered that the Property Manager and the applicants work at separate workplaces and avoid coming into contact with each other.

The Commission was also critical of the manner in which the company investigated the matter. Lacking a formal anti-bullying policy, the company’s handling of the complaint had been poor and contributed to the feeling of victimisation of the applicants. The Commission ordered the company develop a policy and conduct training to educate staff on acceptable work practices and the harmful impacts of bullying.

Implications for Employers

This case highlights the importance of having proper anti-bullying training and workplace policies to ensure that a positive workplace culture is maintained. It is essential to follow any procedures outlined in your workplace policies and to enforce them. Bullying has serious impacts on employee health and productivity, and may lead to talented workers choosing to pursue their trade elsewhere.

With adequate training and a suitable anti-bullying and grievance procedure policy, you can limit the effects of bullying within your workplace and create a positive and friendly working environment.

NB Lawyers offer a legal consultation to all Employers.

NB Lawyers are Employment Law Specialists. If you are interested in learning more about workplace bullying provisions under the FW Act or are looking to implement an anti-bullying policy, please contact Jonathan Mamaril, Principal, on 07 3876 5111 or via email at jonathanm@nb-lawyers.com.au.

Written by
Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au

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