CF and NW and Company A and ED [2015] FWC 5272

More than 18 months after the anti-bullying jurisdiction was introduced, the Fair Work Commission (“FWC”) has made its first formal finding of bullying, having found that two employees were subjected to bullying and harassment by their manager, and issued orders to stop the bullying. As well as being the first case in which the FWC has made a formal finding of bullying, this is just the third anti-bullying order to be issued by the FWC since the inception of the anti-bullying jurisdiction in January 2014.

In this matter, the Applicants alleged that their manager had engaged in belittling conduct, swearing, yelling and inappropriate language, interference with and undermining of their work, physical intimidation, attempts to incite victimisation of other staff members and threats of violence. Following an investigation of the Applicants’ complaints, their employer moved the manager to another branch of its real estate agency. The Applicants took leave from work to receive medical treatment and claimed workers’ compensation in respect of their manager’s behaviour.

In finding that the Applicants’ allegations were founded and that the manager’s conduct constituted bullying, the FWC held that the manager’s behaviour created a risk to the Applicants’ health and safety and that that risk was ongoing because, although the manager had moved offices, there was “common ownership of the businesses” which made the threat of “future work related interactions… real”.

The FWC ordered that, for 24 months:

• the manager and the Applicants must not make contact with each other;

• the manager must not attend the Applicants’ workplace and the Applicants must not attend the manager’s workplace;

• the manager must not be given access to the Applicants’ portfolios when they return from leave;

• the employer must, by 1 September 2015, provide anti-bullying training to all its employees and update its anti-bullying policy, including its grievance procedure; and

• the employer must provide the Applicants with written clarification of reporting arrangements upon their return to work.

This decision is also interesting because it provides some insight into how the FWC may seek to manage the sensitivities surrounding the disclosure of the identity of the parties the subject of a bullying application moving forward. In this matter, the FWC ordered the identity of the parties remain suppressed despite the finding of bullying. This was because:

• the suppression of the parties’ identity had been an important factor in the employer conceding that the manager’s behaviour could be dealt with under the FWC’s anti-bullying jurisdiction; and

• the stop-bullying orders had been developed with the parties’ consent with a view to the resumption of a productive working relationship between the Applicants and the employer.

Lessons for employers

This case demonstrates that, when anti-bullying applications cannot be resolved by mediation, the FWC is willing to impose wide ranging orders to stop conduct that constitutes bullying in the workplace. Such orders will not necessarily be limited to the relationship between the bullying and bullied parties and may, as here, impose material obligations on employers.

It is essential that organisations develop behaviour and culture policies which highlight the responsibility of employees to refrain from bullying conduct in the workplace, thoroughly train employees on their obligations under such policies and enforce these policies effectively.