Defining the limits of “bullying” in the Fair Work Commission

Stephen Booth

One year on from the commencement of the FWC’s anti-bullying jurisdiction, there have been far fewer cases than anticipated, and very few of those have had anti-bullying orders made by the Commission.

However, an anti-bullying claim is still a potential headache for an employer because dealing with proceedings, while remaining in an ongoing employment relationship, can be very difficult, and because, although the FWC cannot award compensation, an agreed payment along with a Deed of Release and termination of the employment relationship is in fact sometimes the solution to an anti-bullying claim.

Cases before the Commission continue to highlight what can, and cannot, be bullying for purposes of the FWC jurisdiction (note that these points are not necessarily relevant to other contexts in which bullying claims might arise such as workers compensation or work health and safety).

Among the points which have become clear are the following:

The nuances of what is and what is not bullying can be very difficult to assess in the thick of things, where the situation is never as clear cut as it appears to be after detailed evidence is distilled to a conclusion by a court. The challenge for employers is to deal with issues promptly and fairly in real time, and the basic groundwork for that is to have in place policies which deal with bullying, harassment and discrimination, and a clear grievance handling policy to let people know where to go if there is a problem. Having these in place, and having staff aware of them, is the best starting place both for handling issues as they arise, and defending any subsequent claims.

If you need assistance with getting your policy house in order, please contact:

Stephen Booth, Principal
Phone: +61 2 9895 9222