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 [2014] 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 [2014] 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 regime.
AND....in its first substantive anti-bullying order under the new laws....the Commission has made the following Orders in relation to two employees:
- Shall complete any exercise at the employer's premises before 8.00a.m.
- Shall have no contact with the applicant alone.
- Shall make no comment about the applicant's clothes or appearance.
- 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, beforehand.
- The applicant shall not arrive at work before 8.15 a.m.
- Parties have leave to approach to have the matter relisted for further conference should there be any difficulty with the implementation of the Orders."
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