Quite, please: Commission orders parties to stop yelling in the workplace

The Fair Work Commission (FWC) recently issued interim orders in an application for orders to stop bullying, which required the parties to, amongst other things, treat each other with respect and dignity, and to not yell in an unreasonable manner (see F.G. [2019] FWC 6283).

The stop-bullying application had been lodged by an employee of a retail services business who alleged that he was being bullied by a co-director and owner of the business. The application was made against a background in which the business was also involved in other litigation relating to the director’s separation from the business as an owner, and the director had also made allegations that she was being bullied by the employer.

In the stop-bullying application, the director had failed to participate in two scheduled conferences with the FWC on the basis that she was medically unfit to have any contact with her employer.

In the meantime, the applicant sought interim orders alleging that, despite the director’s medical certificates, she continued to attend the workplace as the owner, and she unreasonably engaged with the applicant about the stop-bullying application.

Without making any findings about the applicant’s allegations, the FWC considered that, on face value, the applicant had a strong case, and that the “balance of convenience” weighed in favour of making the interim orders.

The “balance of convenience” test required the FWC to consider whether the benefit to be granted by the interim orders outweighed the inconvenience likely to be suffered by any of the parties. In this regard, the FWC considered that:

  • there was a prospect that the director might make contact with the applicant in the workplace;
  • the substantive application was not going to be dealt with or resolved in the immediate future noting
  • the director’s medical condition and the ongoing litigation;
  • the director also claimed she had been bullied by the employer; and
  • the safety and health of all the parties was at risk.

Accordingly, the FWC granted interim orders to the following effect:

  • the parties were to treat each other with respect and dignity and were not to yell, belittle or otherwise conduct themselves in an unreasonable manner when communicating to each other about the business;
  • the parties were not to contact each other about work-related matters when outside of the workplace;
  • the parties were not to discuss the merit or otherwise of the stop-bullying application; and
  • the employer was to implement reasonable measures to ensure that the parties were aware of their obligations.

Lessons for employers

These orders address matters that are normally dealt with in a Code of Conduct and other workplace behaviour policies and, on one view, are matters that should be common sense to employees.

Nonetheless, this decision demonstrates the wide ambit of the FWC’s power to make orders (whether interim or final) in stop-bullying applications, including orders directed to the conduct of the parties or that intervene in the management of a workplace.

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.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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