The Fair Work Commission has confirmed that bullying which
occurred before the new laws took effect on 1 January 2014 can be
taken into account by the Commission in determining whether to make
an anti-bullying order.
In Ms Kathleen McInnes  FWCFB 1440, the
Commission was asked to determine a jurisdictional objection filed
on behalf of Ms McInnes' employer, Peninsula Support Services,
contending that the Commission has no jurisdiction to determine an
application involving alleged bullying conduct which occurred prior
to the commencement of the laws on 1 January 2014.
Relevantly, Ms McInnes alleged that she was subject to bullying
behaviour over a 6 year period between 2007 and 2013. Ms McInnes
did not refer to any bullying behaviour since May 2013.
The Commission held that the laws cannot be properly
characterised as retrospective on the basis that past bullying
conduct can only be taken into account in making a prospective
order to stop future bullying conduct.
The finding of the Full Bench was academic only, as the relevant
employer in this case was ultimately held not to be a "trading
corporation" and hence excluded from the laws (Ms Kathleen
McInnes  FWC 1395 – 24 March 2014).
Notwithstanding this decision, our view is that the Commission
is unlikely to make an anti-bullying order unless an ongoing
pattern of bullying can be established. This is because the
legislation requires the Commission to be satisfied not only that
bullying has occurred, but that there is a risk that the worker
will continue to be bullied at work. Very old allegations of
bullying are unlikely to result in an order from the Commission
where there is no risk of continued bullying.
In any event, the decision serves as a warning to employers that
the new anti-bullying laws are in effect and being accessed by
employees. Bullying which occurred before ' January 2014 can be
taken into account by the Commission. Organisations which do not
have any written policies on bullying or appropriate grievance
handling procedures are most at risk under the new anti-bullying
AND....in its first substantive anti-bullying order
under the new laws....the Commission has made the
following Orders in relation to two employees:
"A......the following Orders
would be followed by the employee, the subject of the
The employee, the subject of the
Shall complete any exercise at the employer's premises
Shall have no contact with the applicant alone.
Shall make no comment about the applicant's clothes or
Shall not send any emails or texts to the applicant except
in emergency circumstances.
Shall not raise any work issues without notifying the Chief
Operating Officer of the respondent, or his subordinate,
Orders to be followed by the
employee, the applicant:
The applicant shall not arrive at work before 8.15
Parties have leave to approach to have the matter relisted
for further conference should there be any difficulty with the
implementation of the Orders."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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