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Thursday 13th August 2015
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Why this employer’s anti-bullying measures weren’t enough
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In today's Health & Safety Bulletin:
- Michael Selinger on the FWC’s first-ever stop-bullying order
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Dear Reader,
Co-workers being yelled and sworn at.
Standing over a colleague’s desk and slamming objects down on it to let them know ‘who’s in charge’.
Manipulating and pressuring staff to turn against other staff members and make their lives a misery. |
Does it just sound like another day at the office?
If you think it sounds more like an out-of-control high school, you’re not wrong. And you probably care enough about stopping bullying in your workplace to know that a situation like this needs to change.
Separating the workers in question, if you can, sounds like a great start.
But is it enough?
The Fair Work Commission doesn’t think so. After a few false starts – situations where the bullying had already been dealt with, or an applicant hadn’t in fact been bullied – it finally issued its first official stop-bullying order this month.
It’s created obligations on the perpetrator of the bullying, but also on the employer.
And asHealth & Safety HandbookEditor-in-Chief Michael Selinger explains today, the situation this business had to grapple with offers a number of lessons for yours.
Michael’s also the author of theBullying Guide – one of the first dedicated products of its kind in Australia to address workplace intimidation. The case he discusses today is one of visible, in-your-face kind of bullying. The kind of behaviour it’s easy for an employer or a court to spot.
But this passage gave me pause for thought:
“‘Low-level’ and persistent bullying can be just as damaging to mental health as more overt bullying, such as abusive language or punching. Within the pattern of persistent behaviour, minor events can be significant and can constitute a pattern of bullying behaviour.”
Now that sounds like high school.
How much of what goes on in the workplace – behaviour that causes a real health and safety risk – are we picking up each day? Can you afford to wait and see the most obvious bullying behaviour unfold, or do you need to look deeper to identify what’s harming your workers?
With that thought, let me hand you over to Michael’s capable hands.
Take care,
Joseph Nunweek
Editor,Health & Safety Bulletin
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Dealing with employee misconduct swiftly and effectively is
crucial to maintaining a productive workplace.
But it can expose you to legal risks...
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Michael Selinger on the FWC’s first stop-bullying order
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 | Dear Reader,
The Fair Work Commission (FWC) has made its first official stop-bullying order since the commencement last year of the anti-bullying jurisdiction under theFair Work Act 2009. |
In the case ofC.F. [2015] FWC 5272, the FWC was satisfied that two employees of a small real estate business had been subjected to bullying - and that a bullying order was warranted to make the behaviour stop.
What was the background?
The applicants had previously raised concerns about the conduct of a co-worker, Ms E.D, with their employer, resulting in an informal investigation and an attempted mediation.
Ms E.D subsequently resigned from her employment with the employer and took up an equivalent position with a related company at a different work location to that of the applicants.
However, in the normal course of business, there was still potential for interaction between the two related companies and their employees. Before the applications to the FWC for stop-bullying orders were made, Ms E.D had been “seconded” back to the employer on a short-term basis.
In their applications, the employees alleged that Ms E.D had engaged in unreasonable behaviour including belittling, swearing, yelling, threats of violence, physically intimidating the applicants and interfering and undermining their daily work.
What was the finding?
Commissioner Hampton found that the applicant workers had indeed been bullied at work. This was because Ms E.D had repeatedly behaved unreasonably towards the applicants which created a risk to their health and safety.
This is because the evidence revealed that there was a “workplace culture where unprofessional conduct and interactions had taken place”and because the employer had also conceded that a finding that bullying conduct had taken place in the workplace could be made.
The Commissioner was satisfied that there was a risk that the bullying at work could continue despite the relocation of Ms E.D, due to common ownership of the businesses and the “secondment”.
After exploring options with the parties, Commissioner Hampton made stop bullying orders with the consent of all parties. The orders are to remain in force for a period of 24 months and require that:
- the applicants and Ms E.D do not approach each other (a practical preventative solution, given the different work locations);
- the applicants and Ms E.D do not attend the other’s business premises;
- Ms E.D could continue her secondment to the employer until the return of one or both of the applicants to work; and
- the employer would establish and implement appropriate anti-bullying policies, procedures and training.
Lessons for employers
The case is an important example of how a business should respond to a bullying complaint. In particular, it highlights which factors will and will not be effective when looking to remove the risk of ongoing bullying (other than termination of the alleged perpetrator’s employment).
In this case, the decision to relocate an alleged perpetrator wasn’t enough to deal with the key issue of a worker being exposed to a continued risk of bullying. This was because of the closeness of the related businesses.
Some other factors that businesses should consider when looking to put in place arrangements to reduce that risk include:
- the likelihood of there being physical proximity between the affected parties from time to time;
- the requirement for the parties to communicate on business matters;
- the likelihood of the parties being in the same location for common business activities, such as work functions; and
- the risk of the parties communicating via social media.
Warm regards,
Michael Selinger
Editor–in–Chief
Health & Safety Handbook
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