Bullying in the workplace involves an individual or group subjecting a colleague to repeated unreasonable behaviour, which has the risk of causing damage to the recipient's health and safety.
When an employee makes a stop bullying application to the Fair Work Commission, the Commission can only make orders if they are satisfied that a worker has been bullied and there is a risk that the worker will continue to experience bullying by that same individual or group.
Whether the worker is still working with the named individual or group, and any action taken by the employer or a work health and safety regulator will be considered when determining that ongoing risk. For example, if an employer introduces changes specifically to address the bullying, the Commission will consider the impact of those changes on the employee's risk of continuing to be bullied. Modifications such as changing rosters, reporting lines or relocating the relevant parties, introducing new policies, or providing anti-bullying or other appropriate training could all play a part in the Commission's decision.
It is important to note that the ongoing risk of bullying must be by the same individual or group who has been found to have engaged in bullying behaviour. It is not sufficient to say there is an ongoing risk of bullying by anyone else.
So, what happens if the employee is dismissed or resigns?
If an employee is dismissed or resigns after making their application, then there would not usually be any risk of the employee continuing to be bullied at work. The employee is not likely to be able to demonstrate any risk of future bullying when they will no longer be working with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity in the future.
Without that risk, the Commission has no power to make stop bullying orders so the application would be dismissed. However, the Commission has held that dismissing an application where a worker has been dismissed will not always be appropriate without considering the circumstances surrounding the dismissal and whether it is being actively contested.
Employees who are dismissed but later re-employed by the same employer can make another application if the bullying behaviour occurs again. Any allegations of past bullying can be used to support the new application.
Other claims may be available to employees who are terminated from their employment because they are being bullied, so seeking advice from an employment lawyer is recommended.