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Dismissed workplace bullying claim highlights risky loopholes

Instead of comforting employers, a recent dismissal of a workplace bullying application[1] highlights that in practice the workplace bullying laws should not be considered a ‘one stop shop’ jurisdiction.

As this case shows, workplace bullying applications to the FWC are just one of many ways that employees can bring legal action about perceived workplace bullying.

Although this employee’s workplace bullying application was dismissed, the FWC recognised that the door is still open for a future workplace bullying application should he be returned to work through separate workplace litigation.

The Facts

The employee (Mr Shaw) applied to the Fair Work Commission for an order to stop perceived workplace bullying.

During the period before the application was set down to be heard, the employee was dismissed by his employer (ANZ).

As a consequence, ANZ then applied to the FWC to have the employee’s workplace bullying application dismissed on the basis that it had ‘no reasonable prospect of success’.

The employee countered by submitting that his application should continue because his termination was invalid.

As a separate matter, after his dismissal, the employee brought other workplace litigation against the employer; a general protections application alleging adverse action because of his dismissal.

The Decision

In assessing the employer’s application to dismiss, the FWC went through the elements of the FW Act’s workplace bullying provisions and their practical application.

In order for the employee’s claim to be successful, the FWC recognised that:

it must be satisfied not only that Mr Shaw has been bullied at work by an individual or group of individuals but also that there is a risk that he will continue to be bullied at work by that individual or group of individuals.

In this case, there could not be a risk of continued workplace bullying because Mr Shaw was no longer employed by ANZ and therefore was no longer “at work.”

Despite the employee’s argument that his dismissal was invalid, the FWC stated that, in this case, it was not necessary to express a view as to whether the termination was lawful.

The important factor being, the employee’s dismissal, whether unlawful or not, brought the employment relationship to an end.

The FWC dismissed the workplace bullying claim on the basis that (with the worker no longer employed by ANZ) the FWC did not have power to make a workplace bullying stop order and, as a consequence, the claim had no reasonable prospect of success.

The FWC did recognise however, that the dismissal of his workplace bullying application would not operate to prevent a future workplace bullying application by the sacked employee if he were reinstated as a result of his separate workplace litigation.

Lessons for Employers

The anti-bullying provisions of the Fair Work Act operate to prevent further bullying conduct occurring.

In this employee’s case the termination of his employment meant his workplace bullying claim had no reasonable prospect of success because he was no longer “at work”.

However, employers should never consider sacking an employee as a device for stopping a workplace bullying claim.

In the present case, the aggrieved employee has also brought a general protections claim because of his sacking.

If his general protections claim is successful, it will be open to the FWC to reinstate the employee back to his former position, thus enabling the employee to bring a future workplace bullying claim if the circumstances dictate.

The interpretation of the new workplace bullying laws continues to surprise in ways many have not anticipated.

[1] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408

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