Introduction

The Fair Work Act 2009 (Cth) (the “FW Act”) gives rights to employees to make an anti-bullying application to the Fair Work Commission (the “FWC”). While the intention of this jurisdiction is to prevent employees being subject to bullying behaviour, what constitutes bullying can be a nebulous concept. In some cases, an employee may use an anti-bullying application as a strategy to prevent the termination of their employment or secure a more favourable exit from an organisation.

In a recent decision, the FWC dismissed an anti-bullying application made by an employee after finding that there were no reasonable prospects of success, and noting that the employee was using the application as a way to preserve employment.

Background

The employee was the operations manager for a business that operated licensed premises in Queensland. The employee lodged an anti-bullying application against the sole director and owner of the business, who was an elderly woman of more than 90 years of age.

Over the course of the proceedings there were numerous conciliation conferences which resulted in substantial offers of settlement made. After the parties failed to come to an agreement, the anti-bullying application was listed for a final hearing, with directions for the filing of evidence and submissions.

What followed was a series of extensive applications by the employee for the production of documents, along with various interlocutory applications and decisions by the FWC. This culminated in the employee making an application to the Federal Court appealing a decision by the Full Bench of the FWC regarding the production of documents. During the course of the proceedings the employer had made an undertaking that it would not terminate the employment of the employee until the anti-bullying application had been determined.

On 14 February 2022, the Federal Court dismissed the application by the employee in relation to the production of documents and made Orders awarding costs against the employee. Following the decision of the Federal Court, the employee made no attempt to reagitate the anti-bullying application to proceed to the final hearing, despite the allegations relating to events which had occurred in 2020.

The employer then filed an application under section 587(1) of the FW Act to dismiss the anti-bullying application on the grounds that it had no reasonable prospects of success. The application contained undertakings which included that the director would not bully the employee, initiate contact with him or have responsibility for directly managing him.

Decision

The FWC ruled in favour of the employer, dismissing the anti-bullying application on the grounds that it had no reasonable prospects of success.

In making the decision, the FWC reviewed the chronology of the case, including the actions by the employee, and found that the employee’s actions did not indicate that he believed he was at risk of continuing to be bullied at work.

The FWC considered that without any more material, the substantive anti-bullying application had no reasonable prospects of success and any further time spent on the matter would only result in most costs being thrown away. Notably, the FWC stated that it was inclined to believe that the employee had engaged in a legal strategy which was aimed at stalling the final hearing of the matter so that the employment relationship was preserved.

Key takeaways

• The FWC has the power to make a stop bullying Order if it is satisfied that the employee making the anti-bullying application has been subjected to bullying and there is a risk that the bullying will continue.
• Although the FWC cannot make orders for financial compensation in response to an anti-bullying application, in some circumstances employees may seek to use an anti-bullying application as leverage to prevent the termination of their employment or to secure a more favourable exit from an organisation.
• Employers should be aware of the risk that an employee may try to make an anti-bullying application to stall the potential termination of their employment, particularly if there is a history of poor performance or misconduct.
• While employees may try to claim that they have been subjected to bullying due to actions taken by their employer to manage their employment, reasonable management action carried out in a reasonable manner does not constitute bullying behaviour.

Kirryn West James, Director