First bullying orders: A step too far?

On 21 March 2014, Senior Deputy President Drake of the Fair Work Commission made the first orders to stop bullying under the new jurisdiction.

The just over one-page decision provides no information regarding the circumstances that led to the orders being made beyond that it was agreed during a conference before SDP Drake on 4 March 2014.

The orders state that the employee who was the subject of the application (the alleged bully):

• shall complete any exercise at the employer’s premises before 8.00a.m;
• shall have no contact with the applicant alone;
• shall make no comment about the applicant’s clothes or appearance;
• shall not send any emails or texts to the applicant except in emergency circumstances; and
• shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

The applicant (the person who approached the FWC for the orders) was also subject to an order not to arrive at work before 8:15am. Leave was also given for the parties to approach the FWC should there be any difficulty with the implementation of the orders.

This was the first time the FWC published orders to prevent bullying behaviour. The scope of the orders and the level of specificity also raises a number of issues. How long are the orders in place? Does the FWC have jurisdiction to enforce the orders and, if so, to what extent and what “penalties” would be applicable for breach? How practical are the orders given (presumably) the parties have to continue to work together?

Certainly the orders involve an external party (the FWC) delving into and trying to regulate what many would consider are the minutia of the employment relationship and relationship between co-workers. There would be a real question whether, if challenged, such orders would be constitutionally enforceable.

There is also a degree of ambiguity in the orders that would be concerning to many employers. What is “exercise”? What constitutes a “work issue” requiring the alleged bully to notify the CEO? What constitutes a comment about a person’s appearance? As the orders were agreed, one would expect the parties themselves would have an idea regarding what prompted such orders and accordingly, their scope. However, to the outsider they may appear vague and expansive.

What is clear is that being involved in the bullying jurisdiction before the FWC potentially exposes an employer to broad reaching orders that can impact the way business is conducted. The best defence against such exposure is having a clear anti-bullying policy and resolution procedure, training staff regarding your expectations and investigating any bullying complaints appropriately.

 

This article was written by Jane Wright, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.