Risk of continued bullying

See Fair Work Act s.789FF(1)(b)(ii)

For the Fair Work Commission to be able to make orders to stop bullying, it must be satisfied not only that a worker has been bullied at work by an individual or a group of individuals, but also that there is a risk that the worker will continue to be bullied at work by that individual or group of individuals.

It is not sufficient to satisfy the second condition in s.789FF(1)(b)(ii) by demonstrating that there is a risk of being bullied at work by individuals other than those who have been found to have engaged in bullying pursuant to s.789FF(1)(b)(i).[1]

Applying the dictionary definition, risk means exposure to the hazard or chance of continued bullying. Relevant considerations will be whether the worker is still working with the individual or group of individuals, and action that may have been taken by the PCBU or a work health and safety regulator to deal with the behaviour.

If an employee is dismissed after making an application, and before the matter is dealt with by the Commission, then there would not usually be a risk that the employee will continue to be bullied at work. If there is no such risk, the Commission has no power to make the order sought by the applicant, and accordingly the application has no reasonable prospect of success and must be dismissed for want of jurisdiction.[2]

For an order to be made, the Commission must be satisfied that there is a risk that the (applicant) worker will continue to be bullied at work by the individual or group (found to have bullied the applicant). Where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, then in almost all cases it will not be possible for an applicant to demonstrate that there will be a future risk that they will be bullied at work.

However, the Commission has held that it will not always be appropriate to dismiss an application where a worker has been terminated from their employment.[3] The decision to dismiss an application on this basis requires a consideration of the particular circumstances of the parties, including whether or not an individual will return to a workplace in some capacity as a worker. It may be appropriate for the Commission to consider holding an application in abeyance where there is an apparently related dismissal that is being actively contested. This is ultimately a matter of judgement in the particular circumstances of each case.[4]

If a dismissed employee is re-employed by the same employer at some future point, and the employee is concerned about the risk of further bullying, there is nothing to preclude the employee making another application under s.789FC subject to the jurisdictional facts being established in relation to that application.[5] Allegations of past bullying can be relied upon in support of such a new application.[6]

If a person conducting a business or undertaking introduces changes in the workplace to specifically address the issues around the alleged bullying behaviour, such changes may impact on the risk that the worker will continue to be bullied at work and the Commission may take this into consideration when considering whether to make an order.[7]

These changes could include:

• the relocation or dismissal of the person or persons named
• the introduction of a workplace anti-bullying policy
• the delivery of anti-bullying or other appropriate training
• changes to rosters, or
• changes to reporting requirements.