The Fair Work Commission recognises that employers can set the agenda on response to bullying

The Fair Work Commission's anti-bullying jurisdiction, introduced on 1 July 2014, continues to evolve. A recent decision of the Commission highlights an opportunity for employers to effectively deal with bullying conduct, rather than have the Commission impose solutions through its orders.

Bullying doesn't necessarily lead to orders

The recent Fair Work Commission decision of Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen [2017] FWC 3136 highlights a key element of the anti-bullying jurisdiction that is sometimes overlooked, as observed by Commissioner Roe in that decision:

"The role of the Commission in these matters is not to punish but to take steps necessary to stop bullying."

This is reflected in section 789FF(1)(b) of the Fair Work Act which requires the Commission to be satisfied that there is a risk that a worker will continue to be bullied at work by an individual or group before it makes anti-bullying orders.

As such, even where a worker is found to have engaged in bullying conduct, it is not a certainty that the Commission will make anti-bullying orders. This opens up the opportunity for employers to assume control, taking steps to reduce the risk of both a repeat of any bullying conduct and orders from the Commission.

By doing this, employers can set the agenda for preventative actions rather than having orders imposed by the Commission. With all due respect to the Commission, and acknowledging its important role in protecting workers from ongoing bullying, employers will often rightly consider themselves to be best placed to determine the practical steps that can be taken to effectively address the future risk of bullying in their business or organisation.

The employer has taken action. Should orders still be made?

In this case the Commission accepted that the manager, Mr Cullen, had engaged in bullying conduct against two employees.

This led Commissioner Roe to pose the question:

"If the orders are not made, is there a risk that they (the applicants) will continue to be bullied at work?"

The Commission described this as the "most difficult question in this case". This was because the employer, Murrays, had substantially changed Mr Cullen's role in response to the bullying allegations raised against him.

As a result of these changes, Mr Cullen lost responsibility for the supervision of drivers, investigation of incidents and assessment and disciplining of drivers. He retained responsibility for training drivers and occasional recording of breathalyser results

The applicants submitted that this was insufficient and they still felt at risk notwithstanding the modification of Mr Cullen's role.

Commissioner Roe found one further essential step needed to be taken to address the risk of future bullying - recognition that bullying had occurred. The Commissioner observed:

"I accept that the action of changing the role of Mr Cullen is not in itself sufficient. I consider that an essential further step is to recognise that bullying has occurred. This is essential because:

• it sends a strong message to Mr Cullen and should reduce the likelihood for further unreasonable action;
• it should assist the drivers affected to regain some confidence and dignity;
• it should assist management in taking the necessary steps to be more supportive of the drivers and to regain their confidence." [emphasis added]

Commissioner Roe observed:

"Given the number of incidents and the number of drivers who hold serious and soundly based concerns, I accept that there was a serious risk that bullying conduct would continue. However, I also accept that the risk of that conduct continuing has been very substantially reduced by the change in Mr Cullen's role. Mr Lee gave evidence that the aim of the restructure was to remove the chance of further conflict between Mr Cullen and the drivers."

As such, the Commissioner declined to make an order on the basis of the change in role and the Commission's finding that bullying has occurred:

"I consider my finding that bullying has occurred when combined with the reduced risk due to Mr Cullen's new role should be sufficient to protect Mr Lacey and Mr Kandelaars from the risk of further bullying. I therefore consider that an Order is not necessary or appropriate in the circumstances of this case. Should further unreasonable behaviour occur, a new application can be made."

Implication for employers

This case demonstrates that even where the Commission finds bullying conduct has occurred, it is not a fait accompli that orders will be made.

Of course, on the face of it the easiest course might simply be to terminate the employment of the bully. This may not always going to be the right response.

First, there is a legal risk of unfair dismissal that can arise even where there is a defensible finding of bullying against an employee.

Secondly, without detracting from the substantial damage bullying can do, there may be a way of implementing changes that retain the skills, abilities and contributions that the employee makes while significantly reducing the risk of repeat conduct.

An employer can get on the front foot by taking steps such as:

• having an effective mechanism for raising claims of bullying and then thoroughly investigating those claims;
• where there are findings that bullying conduct has occurred, taking active steps to minimise as far as possible the prospect of its repetition (including measures such as changes to position or reporting lines, communication and contact protocols and physical separation);
• making it clear to an employee who has engaged in bullying conduct that it is unacceptable and, where possible, have them acknowledge their wrongdoing and give a specific undertaking not to repeat it.

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