The anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (FWC) a broad power to make any order it considers appropriate to prevent a worker from being bullied at work (except an order which requires monetary payment).
In Burbeck v Alice Springs Town Council; Davison; Price; Fisher  FWC 4988, the FWC issued orders against the Applicant and her employer after it found that the Applicant’s own conduct and behaviour was at times unreasonable and had a contributory effect to the unreasonable conduct and behaviour of the employer and its employees.
The Applicant was employed as a Children’s and Youth Services Officer at Alice Springs Public Library. She made an application for stop-bullying orders alleging that she was bullied by her supervisor, the library manager and director.
The Applicant relied upon six specific matters which she alleged amounted to bullying conduct by the employer and its employees. The Applicant’s complaints mainly concerned the issuing of letters, performance counselling, complaints made but not investigated and the revocation of her approved annual leave.
The FWC considered the allegations and the surrounding circumstances. It determined that four of the six allegations about the employer’s conduct were not reasonable management action conducted in a reasonable manner by the employer and accordingly concluded that the behaviour constituted bullying.
In considering the possible orders which could be made, the FWC commented that in many cases involving bullying allegations which come before it, there are aspects of poor behaviour on both or many sides.
In this case, the Applicant’s behaviour was also considered to be unreasonable. The FWC accepted that, following the Applicant’s return from long service leave, she resented her new supervisor and had a perception that she was more qualified than her supervisor. The FWC noted that the Applicant wanted to be “impervious” to critiques of her performance and her criticism of the employer’s decision to undertake performance counselling was a “diversionary tactic”. In addition, the FWC held that the Applicant needed to improve her interpersonal skills and there was a pattern of “generally pushing back at all opportunities”.
The FWC considered it was appropriate to make orders against both the Applicant and her employer. These orders included setting aside matters relating to the allegation letters, requiring that the Applicant participate in performance counselling and comply with the employer’s Code of Conduct. The orders also required the Respondent to arrange for anti-bullying and communication training in the library.
Lessons for employers
In this matter, the FWC made orders for the purpose of resetting the employment relationship between the Applicant and the employer to allow them to move forward on an even basis.
As noted above, the FWC can make any stop-bullying orders it considers to be appropriate, such as requiring the employer to update an anti-bullying policy or undertake training and restraining a party from certain conduct.
The ultimate goal for stop-bullying orders is to stop and prevent the behaviour and encourage good working relationships.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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