19 February 2016
David Weiler, Associate
An interesting question has been raised in a recent case of the Fair Work Commission’s (“Commission“) anti-bullying jurisdiction: Does the Commission have the power to order that an employer re-credit an employee’s leave that was taken as a result of bullying?
In the decision, Commissioner Hampton was presented with a case where an employee had not been attending work due to being subject to bullying and harassing behaviour. However, because the employer had taken extensive steps to address the issues raised in the initial application and there was evidence of an improved relationship between the parties since the hearing, he refused to make any of the orders sought by the applicant. These orders included, “Restitution (crediting) of all leave taken due to bullying matters, paid and unpaid.”
Although the Commission did not see fit to make any orders in relation to the employee’s application, it did:
“not discount the possibility that the Commission could consider including provisions dealing with leave taken as part of an order in this jurisdiction however the broader implications of the FW Act, including through the National Employment Standards – which deals with the minimum entitlements obligation of the parties in that regard, would need to be fully considered.”
Under section 789FF of the Fair Work Act 2009 (Cth), for the Commission to make a bullying order it must be satisfied that:
- the worker has been bullied at work by an individual or group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group.
In the current case the Commission determined that the risk that the worker would continue to be bullied was not found and therefore it was not appropriate to make the orders sought by the applicant.
While the powers under section 789FF allow the Commission to make any order it considers appropriate, (other than an order requiring payment of a pecuniary amount), such an order must be made to prevent the worker from being bullied at work. Therefore, if an employee goes on leave as the result of being bullied and seeks through a bullying order that this leave be re-credited, he or she must demonstrate to the Commission how such an order would prevent further bullying
Based on these legislative requirements, it seems unlikely that such an order would be made especially considering the purpose of the anti-bullying jurisdiction, although the Commission has left the door open. It is not a tribunal for victims to seek compensation for being subjected to bullying but rather is a forum to facilitate the resolution of unsafe behaviours in the workplace. However, this does not detract from the need for employers to swiftly and comprehensively deal with bullying before it becomes such an issue that the victim feels like the need to remove themselves from the workplace.