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FWC clarifies future risk of bullying after dismissal

EMPLOYEES in the process of contesting their dismissal through the Fair Work Commission may have any concurrent applications for stop bullying orders temporarily suspended for future hearing, despite such applications having a low chance of success.

The decision follows an application for a stop-bullying order made by a former restaurant employee, lodged three days after receiving a letter notifying him that his employment contract had been terminated.

At the same time as seeking a stop-bullying order, the employee also filed a general protections claim in relation to his dismissal.

Despite failing to move forward with his general protections claim due to financial limitations, the worker proceeded with his stop bullying application.

In response, the employer submitted a jurisdictional objection on grounds the employee no longer worked for the company and as such had no case for a stop-bullying order under section 789FC of the Fair Work Act 2009.

Further, the employer argued there was no risk of the worker being bullied in future, which is a key consideration under section 789FF, because of the worker’s dismissal.

On hearing the matter, Commissioner Peter Hampton rejected the employer’s initial position, citing that ‘although the applicant had been given notice of dismissal, he remained an employee (and a worker) until [the date his termination took effect]’.

However, Commissioner Hampton accepted the employer’s argument of no future risk.

“It is clear from the circumstances of this matter, that there is presently no risk that the applicant will be bullied at work by the individual or group of individuals, given the fact that the applicant has been terminated and no longer at work in the relevant workplace,” Commissioner Hampton said.

“It is however prudent to consider whether there is any reasonable prospect of a relevant risk arising in the future.”

Specifically, Commissioner Hampton said that while an application for stop-bullying orders may be made concurrently with an application for an unfair dismissal claim, it was at the discretion of the Commission to dismiss the application as having no reasonable chance of success.

“I consider that the dismissal of an anti-bullying application in consequence of the dismissal of an applicant worker is a likely, but not the only, outcome in those circumstances,” he said.

“In that regard, I note that there is no suggestion [in this case] that the dismissal of the applicant took place after the anti-bullying application and it was not therefore potentially influenced by the making of the application.

“In my view, this does bear upon the discretion to dismiss the application.

“In other circumstances it may be appropriate for the Commission to consider holding an AB 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.”

The application for stop-bullying orders was then subsequently dismissed.

Implications for Employers

This particular case highlights how the Fair Work Commission may approach applications for stop-bullying orders where there is a limited future risk of the harassment continuing due to the employee having been dismissed.

The Fair Work Commission clarifies that while many such cases would have a low chance of success due to ambiguity around whether a stop-bullying application was made in protest of dismissal, some circumstances may warrant the Fair Work Commission holding the matter in abeyance.

AREEA members should approach workplace bullying proactively by clearly stating and communicating in company policies what constitutes bullying, harassment and misconduct. Contact your local AREEA office to speak to an AREEA workplace relations consultants for help developing these policies.

Further, workforces may benefit from training to improve workplace cultures and limit the likelihood of claims being made regarding bullying behaviours. AREEA Training & Development offers a range of courses specialising in this area. Call 1800 891 662 for more information.

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