Considerations

When considering the terms of an order to prevent further bullying and/or sexually harassment at work, the Commission must, to the extent that it is aware, take into account:

• any final or interim outcomes arising out of an investigation into the matter that is being undertaken by another person or body
• any procedures available to the worker to resolve grievances or disputes
• any final or interim outcomes arising out of any procedures available to the worker for resolving grievances or disputes, and
• any matters that the Commission considers relevant.[240]

By taking into account these factors, the Commission can frame the order in a way that has regard to compliance action being taken by the employer or a health and safety regulator or another body, to ensure consistency with those actions.[241]

A worker who has made an application to the Commission for an order to stop bullying or sexual harassment (or both) can also seek intervention by a WHS regulator under the WHS Act or the corresponding state or territory WHS laws.[242] WHS regulators may respond to complaints in a number of ways consistent with their own internal policies. Regulators may send inspectors to workplaces to investigate incidents, issuing prohibition or improvement notices, seeking enforceable undertakings or prosecuting alleged offences against WHS laws.

Workplace bullying or sexual harassment which involves criminal behaviour may also be the subject of a complaint to, and investigation by the police.

Any outcomes arising from an investigation by such a person or body, that the Commission is aware of, must be taken into account by the Commission when making orders.[243]

The AHRC and anti-discrimination bodies in the states and territories can also deal with complaints about sexual harassment (depending on matters including where the conduct occurred). Information about each of those bodies is available on their websites.[244]

Outcome arising from an investigation by another person or body considered

Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014).

Facts

The applicant managed a team of employees. It was alleged that 2 employees who reported to the applicant started behaving unreasonably towards the applicant by harassing her on a daily basis and spreading rumours about her in the workplace.

One of those employees made bullying allegations against the applicant immediately prior to the applicant lodging this application. The employer arranged for an investigation to be conducted by a legal firm, which found that the allegations against the applicant were justified in part, whereas the complaints by the applicant were not substantiated.

The applicant did not rely upon the legal firm’s investigation as evidence of bullying conduct in its own right (by the employer), but as support for her proposition that there was a risk of ongoing bullying conduct against her, principally because no action was being proposed in relation to the other employee.

Outcome

The Commission noted that, although the results of the investigation were provided to the applicant and the Commission, the full report and evidence about how the investigation was conducted were not. As a result, the Commission placed no weight upon the outcomes of the investigation so far as it might have cast light on the applicant’s and other employee’s conduct and relied upon its findings from the direct evidence provided. Accordingly, it was not necessary for the Commission to consider the employer’s claim of legal professional privilege in relation to the investigation and/or whether this had been waived.

The Commission found that some of the behaviour towards the applicant was bordering upon unreasonable but not such as to fall within the scope of bullying behaviour as defined by the Fair Work Act. As a result the Commission was not satisfied that the applicant had been bullied at work.

Relevance

The Commission found that the engagement of an external person to investigate both competing allegations was not unreasonable. There was also nothing unreasonable about the apparent general approach to the investigation adopted by the legal firm.

This refers to any internal complaint mechanisms that may be available to a worker to resolve their grievance at the workplace level without the Commission’s involvement, such as pursuant to a WHS law or an enterprise agreement or award.

Some workplaces will have policies which contain specific provisions on workplace sexual harassment and bullying, such as how it is to be prevented and what action should be taken if it occurs. These may be contained within an enterprise agreement, code of conduct or policy manual.

The availability of alternative procedures does not mean that an application for orders to stop bullying or sexual harassment (or both) cannot proceed. An individual may still apply to the Commission to help resolve the matter quickly and inexpensively if they have been bullied and/or sexually harassed at work.[245]

In considering the terms of an order, the Commission must also take into account any other matters that the Commission considers to be relevant to an application for an order to stop bullying or sexual harassment (or both).

Without limiting the matters that might be considered in this context, the circumstances of the parties, the history and nature of the work and work relationships) and the utility of any orders that might be made would be relevant considerations.[246] This might include:

• the applicant being on leave from the workplace
• that the individual(s) involved in the behaviour are no longer in the workplace
• changes in the work environment
• initiatives put in place by the employer such as policies and procedures to reduce the risk of bullying and/or sexual harassment
• any other developments in the workplace.[247]

Orders NOT made – Positive steps by employer

Re Ms LP [2015] FWC 6602 (Hampton C, 4 November 2015);

Re Ms LP [2016] FWC 763 (Hampton C, 12 February 2016).

Facts

The applicant was a Food and Beverage Attendant at a family-owned restaurant. She sought orders to stop certain alleged conduct by a group of individuals, including orders for the employer to conduct management courses to be completed by the supervisors at the restaurant, and for all staff to attend training on bullying conduct.

The employer contended that the alleged conduct was not bullying but rather was reasonable management action carried out in a reasonable manner. The employer further contended that the Commission had no jurisdiction to consider the conduct of the former Head Chef and former Supervisor as they had ceased working for the employer and there was no risk that the applicant would continue to be bullied by those individuals at work.

The employer submitted that, since some of the incidents had occurred, it had worked to develop a comprehensive set of policies about workplace bullying and appropriate workplace behaviour and provided training in relation to those matters.

Outcome

The Commission was satisfied, on fine balance, that there was sufficient relevant unreasonable behaviour towards the applicant and/or the group of workers to which she belonged whilst at work to constitute bullying. However, much of that behaviour occurred in a particular context that had since changed, and this had an impact upon the appropriateness of any orders that might be considered.

The Commission was not persuaded that it could, or should, make orders in this matter, and sought further submissions on this issue. In a subsequent decision, the Commission determined that given the history of the matter, the extent of positive measures that the employer subsequently put into place as a result of the applications, and an understanding of the workplace and the relationships that had developed from hearing the matter, the Commission did not consider that the making of orders at that time would be conducive to the constructive resumption of working relationships. No orders were made.

Relevance

Where a finding of bullying conduct is made and there is some future risk, preventative orders would be expected to follow. Such orders would establish the appropriate basis for future mutually safe and constructive relationships.

Here, the Commission decided that making orders would not be conducive to the parties resuming constructive working relationships given the history of the matter and the extent of positive measures the employer had put in place as a result of the applications.

Orders NOT made – bullying finding an adequate deterrent

Lacey and Kandelaars v Murrays Australia Pty Limited; Cullen [2017] FWC 3136 (Roe C, 8 June 2017).

Facts

The 2 applicants were employed as bus drivers. They alleged bullying by their manager Mr Cullen and their employer. Mr Cullen and Murrays Australia provided a joint defence to the applications and accepted that whilst Mr Cullen engaged in some inappropriate behaviour, they denied that the behaviour amounted to bullying.

Mr Cullen’s duties were altered so that he was no longer responsible for supervision of drivers, investigating incidents, assessing drivers or disciplining drivers and therefore there was no longer any risk that the applicants would be bullied at work. He remained responsible for training drivers and recording breathalyser results from time to time.

The Commission was satisfied that Mr Cullen’s behaviour was unreasonable and that it was not reasonable management action carried out in a reasonable manner. The Commission was satisfied that Mr Cullen bullied both applicants.

Outcome

The Commission accepted that the change in Mr Cullen’s role in itself was not sufficient and considered that an essential further step was to recognise that bullying had occurred because:

• it sent a strong message to Mr Cullen and should reduce the likelihood for further unreasonable action
• it should assist the drivers affected to regain some confidence and dignity, and
• it should assist management in taking the necessary steps to be more supportive of the drivers and to regain their confidence.

The Commission also accepted that there was a serious risk that bullying conduct would continue. Ultimately, the Commission held that bullying had occurred but an order was not necessary or appropriate in this case.

Relevance

The Commission accepted that the risk of bullying conduct continuing was substantially reduced by the change in Mr Cullen’s role, and that it was not possible to avoid contact between the applicants and Mr Cullen. The Commission did not consider that an order requiring complete separation between Mr Cullen and other drivers, and the applicants in particular, or requiring another person to always be present, would be a practical or balanced response.