DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

CF
(AB2015/406)

NW
(AB2015/409)

And

Applications for an FWC order to stop bullying – same workplace and course of alleged conduct – matters heard together – determinative conference conducted – concession made that bullying conduct took place and future risk present – jurisdiction to make orders found – orders developed in conjunction with, and with eventual consent of, all parties – parties de-identified in decision to support consent position – orders made.

1. Background

[1] On 30 July 2015, during the course of a determinative conference, the Commission made stop bullying orders 1 arising from two related applications. This decision outlines the circumstances of those applications, the basis upon which the orders were made, and the process leading to that point.

[2] For reasons which will be outlined shortly, this decision, and the public version of the orders made by the Commission, do not identify the parties.

[3] Ms C.F and Ms N.W. (the applicants) each made an application for an order to stop bullying under s.789FD of the Fair Work Act 2009 (the FW Act). The applicants were, and are, employees of a relatively small real estate business. The applications allege bullying conduct by Ms E.D., who is a Property Manager engaged by the employer, and more recently, employed by a related company. Both of these applications concerned alleged conduct in the same workplace and, at least in general terms, the same unreasonable behaviour.

[4] Section 789FC of the FW Act provides as follows:

“789FC Application for an FWC order to stop bullying

(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.

Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations.

(4) The regulations may prescribe:

(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[5] There was no contest that the applicants reasonably believed that they have been bullied at work and it was clear that each were workers as defined. The applications also met the other requirements of s.789FC.

[6] The applications were lodged with the Commission on 18 June and 23 June 2015 respectively and following a process, which provided an opportunity for all parties to confirm their respective positions, a preliminary conference was conducted via telephone on 10 July 2015.

[7] The applicants alleged various conduct by ED towards them in the workplace and without outlining the full extent of those allegations, the behaviour was said to include:

● Belittling conduct;

● Swearing, yelling and use of otherwise inappropriate language;

● Daily interfering and undermining the applicants’ work;

● Physical intimidation and “slamming” of objects on the applicants’ desks,

● Attempts to incite the applicants to victimise other staff members; and

● Threats of violence.

[8] The employer contended that at least one of the applicants was provided the opportunity to put their allegations in writing, but failed to do so, and that ED had, in effect, been moved to another location to ensure no work related contact. The employer further stated that this change was providing a safe work environment. In terms of the substance of the allegations, the employer contended that they were either denied by ED or significantly qualified, and that the applicants themselves had acted unreasonably in certain respects.

[9] As a result of the preliminary conference, I determined that the applications should be heard together and be subject to a determinative conference. 2

[10] Amongst other considerations leading to that approach was the seriousness of the allegations, the indication that neither of the applicants was able to safely return to the workplace until the issues had been addressed, and the impact of the unresolved applications upon the relatively small business of the employer. In addition, the parties had earlier attempted to resolve the matters at the workplace without success.

[11] Prior to the point where these applications were lodged, the applicants raised some concerns about the conduct of ED with the employer. These matters were the subject of an informal investigation and an attempted workplace mediation. Subsequently, ED, with the support of the employer, resigned her employment with the employer but took up an equivalent position with the related company. The related company operates from a different location than the workplace concerned with these applications. However, there was, in the normal course, potential for interaction between the two businesses and their employees, and ED in the lead up to the Commission’s proceedings, had also been “seconded” back to the employer to assist its business on a short-term basis.

[12] I note that at the time of the preliminary conference, both CF and NW were not attending the workplace and had lodged claims for workers compensation. Each was also undergoing medical treatment.

[13] The determinative conference was conducted on 30 July 2015. In the lead up to the conference, the applicants, the employer and ED provided written outlines of their respective positions, outlines of the alleged facts (some in the form of witness statements) and relevant documents.

[14] The two applicants attended the conference with a support person and the employer was represented by Mr Maher of HR Legal, with permission. 3 ED also participated in the proceedings. In addition, most of the witnesses who were to give evidence were also in attendance.

[15] Ultimately, the jurisdiction to make orders was conceded by the employer and this avoided the need for the parties to give evidence on the disputed elements. Further, orders were eventually made by the Commission with the support of all relevant parties.

2. The finding that there was conduct constitute bullying behaviour under the Act

[16] Section 789FD of the FW Act provides as follows:

“789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or
(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

[17] The employer is a trading corporation and there was no contest that it was conducting a business or undertaking within the meaning of the Work Health and Safety Act 2011 (WHS Act.

[18] The general nature of the alleged conduct has been set out earlier in this decision. I have also noted the contrary allegations made by the other parties. Ultimately, it was not necessary to make detailed findings on these matters.

[19] The employer 4 conceded that a finding that bullying conduct had taken place in the workplace could be made. That is, there was sufficient apparent conduct, based upon the undisputed elements of the evidence of all parties, that would indicate that repeated unreasonable behaviour towards the applicants, or a group of workers of which the applicants are a member, had occurred. It was also acknowledged that such behaviour may have created a risk to health and safety. In making the concession, the employer noted the contrary allegations in relation to the applicants’ behaviours, but, correctly in my view, acknowledged that these would not of themselves undermine findings about the existence of unreasonable behaviour towards the applicants.

[20] In my view, the concession was appropriate. The conduct revealed in the evidence of the applicants and ED was indicative of a workplace culture where unprofessional and unreasonable conduct and interactions had taken place and that such had created a risk to the health and safety of a number of the workers involved.

[21] The applicants and ED accepted that the applications could be determined on the basis of the concession without the need for findings on each of the disputed elements to be made.

[22] In all of the circumstances, I found that the applicant workers had been bullied at work within the meaning of s.789FD of the FW Act.

3. The capacity to make orders and the terms of the orders made

[23] Section 789FF of the FW Act provides as follows:

“789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and
(d) any matters that the FWC considers relevant.”

[24] For reasons outlined above, I was satisfied that relevant bullying conduct had taken place. Further, I was satisfied that there was a risk that the applicant workers would continue to be bullied at work by the individual concerned (ED). That is, although ED is now employed by the related business and works from a different work location, there is some common ownership of the businesses and ED was already seconded back to assist in the period surrounding these proceedings.

[25] The prospect that the applicants and ED would, in the absence of the orders, have some future work related interactions was real. Further, without measures being implemented to set and enforce appropriate standards of behaviour in the workplace there was a risk of further relevant unreasonable conduct.

[26] The above findings meant that the Commission had the necessary jurisdiction to make the orders.

[27] The considerations to be taken into account in making orders in the anti-bullying jurisdiction are set out in s.789FF(2) of the FW Act. In this case, at the time of the applications being made, there was no formal anti-bullying or grievance resolution procedure operating within the workplace.

[28] The investigation made by the employer was non-conclusive and no other investigations have been conducted.

[29] In light of the jurisdictional concession and the finding made by the Commission, I explored with all parties the nature of the orders that might be made. In the end result, the orders that have been made had the consent of all parties and this is a relevant matter to be taken into account consistent with s.789FF(2)(d) of the FW Act.

[30] The orders apply to, and require actions by, the two applicants, the employer and ED. Each of these are parties to the matters and the Commission is empowered by s.789FF(1) of the FW Act to make orders with that coverage, provided the orders are directed at preventing the applicant workers from being bullied at work.

[31] Without detracting from the details of the orders made by the Commission, they contemplate two broad elements. Firstly, those dealing with specific conduct. This involves a requirement that the applicants and ED do not approach each other and that they not attend the (other) business premises. In some cases, an order that parties avoid each other may not be appropriate as it may have practical difficulties and may not of itself deal with the fundamental unreasonable conduct. In this case, the (now) different employers and work locations meant that avoidance was a practical preventative solution and this was the outcome strongly supported by all parties, including the employer.

[32] I note that the orders in that regard were also crafted to recognise that ED would continue her secondment, but only in the absence of one (or both) of the applicants being fit to resume work. I also note that the employer will be responsible for establishing appropriate return to work arrangements, in conjunction with the applicants and relevant medical advisors, consequent upon the applicants being cleared to resume work.

[33] Secondly, a number of initiatives have been ordered that go to the broader conduct within, and culture of, the workplace. These include the establishment and implementation of appropriate anti-bullying policies, procedures and training, which will include confirming appropriate future conduct and behaviour. Further, reporting arrangements will be clarified.

[34] In my view, the orders, particularly those dealing future workplace conduct and providing appropriate procedures to make and deal with complaints, are genuine preventative orders in the context of this workplace and are consistent with the purpose of such orders as contemplated by the Act.

[35] There are confidentiality provisions in the orders however these acknowledge the need to disclose the full terms of the orders for the purposes of taking advice, informing the return to work process, and for enforcement purposes.

[36] The orders operated from the date of issue and will remain in force for a period of 24 months. In that regard it should be noted that some of the terms of the orders are limited in practice to certain defined circumstances.

4. The de-identification of the parties

[37] The application was subject to a determinative conference, which was conducted in private as contemplated by s.592(3) of the FW Act. All proceedings conducted to that point were also undertaken in private.

[38] I have issued the orders and this decision without identifying the parties involved. I have done so in the case for the following reasons:

● All parties supported that outcome;
● The capacity for the parties to not be identified was an important element in the giving of the jurisdictional concession, and the decision of the applicants and ED to accept that admission without seeking findings on all of the respective and competing allegations; and
● The determination of this matter on the basis of the consent orders made was conducive to the resumption and continuation of on-going safe and productive working relationships between the applicants and the employer.

[39] In these circumstances, I considered that these factors outweighed the considerations that might otherwise lead to the full disclosure of the circumstances of the parties.

[40] The complete version of the orders has been provided to each of the relevant parties.

5. Conclusion

[41] Whilst the establishment of an early determinative conference will not be appropriate in all matters within the Commission’s anti-bullying jurisdiction, in this case, that approach facilitated the expeditious making of appropriate findings, and ultimately, orders that had the concurrence of all parties.

[42] The contribution of the parties, and their support advisors and representatives to that final outcome, bodes well for the re-establishment of safe and constructive working relationships upon the applicants’ forthcoming return to the workplace.

[43] The orders made determined the applications and they have been closed.

COMMISSIONER

Appearances:

CF and NW, on their own behalf with a support person.

A Maher with A Bogaty of HR Legal, both with permission, for the employer.

ED on her own behalf.

Hearing details:

Determinative conference

2015

Melbourne

30 July.

 1   PR569997.

 2   A determinative conference is a form of proceedings designed to enable the Commission to determine the facts and make the necessary evidentiary and other findings. Such a conference is often conducted on a more inquisitorial basis than a traditional hearing but does involve parties giving evidence and having that evidence tested where there are disputed facts.

 3   Permission was given under s.597 of the FW Act on a limited basis in order to explore the employer’s position and an early indication that a concession on merit was being considered.

 4   The employer consulted with ED before making the jurisdictional concession.

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<Price code C, PR570076>