An employee bullied at workplace has the right to lodge an application with the Fair Work Commission. The Commission must start proceedings within 14 days of the lodgment of such application.
The FWC can make any order it considers appropriate to prevent a worker from being bullied at work. However, a risk of continued bullying continues for the Fair Work Commission to make an order to stop the bullying.
In the following case, the company investigated the claims made by the worker and took steps to remove the threat of the bullying. But the worker submitted to the FWC that the company’s actions were insufficient and the risk is still there.
In Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen (2017), the worker commenced proceedings in the Fair Work Commission against the employer, seeking orders from FWC to stop the bullying he had been subjected to.
Mr Kandelaars alleged his manager, Mr Cullen, had engaged in bullying conduct against him. Murrays (the employer) indicated that the stop bullying orders were not necessary given the steps it had taken to reduce the risk of bullying, which were:
- substantially changing Mr Cullen’s role in response to the bullying allegations;
- removing Mr Cullen’s responsibility for the supervision of drivers, investigation of incidents, and assessment and disciplining of drivers.
FWC had to decide whether a stop bullying order was necessary or not? The role of the Fair Work Commission in such situations is not to punish but to take steps necessary to stop bullying. Section 789FF(1)(b) of the Fair Work Act 2009 (Cth) requires the FWC to be satisfied that there is a risk that a worker will continue to be bullied at work by an individual or group before it passes anti-bullying orders. FWC held that Murrays’ actions were sufficient, and that bullying had occurred. The FWC held that recognition of bullying was important as it
- sends a strong message to Mr Cullen and hence should reduce the likelihood of any future bullying;
- would assist the drivers affected by Mr Cullen’s conduct to have this acknowledged; and
- would assist management to be more supportive of the drivers and to provide them with the assistance required for them to regain their confidence.
Furthermore, the FWC declined to make a stop bullying order saying, “an order is not necessary or appropriate in the circumstances of this particular case. Should further unreasonable behavior occur, a new application can be made.”
This case study reminds us how much important it is for an employer to take actions to eliminate the bullying as much as possible at the workplace. This will help reduce the risk of applications being made to the FWC, and if one is made, assist in defending an application for an anti-bullying order. This preventative action is better than a situation where Fair Works Commission passes orders.
An employer should have procedures for employees about how to raise bullying complaints within the organisation. Employer must properly investigate bullying complaints and take immediate actions to minimise the risk of further bullying. This can be done by providing training to staff, changing the perpetrator’s position or reporting lines and providing counselling and assistance to those affected by the bullying.