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first-workplace-bullying-stop-order-raises-many-questions

The Decision

On 21 March 2014, the Fair Work Commission handed down the first ‘workplace bullying stop order’ under its new bullying laws[1].

The application (for an order to stop bullying) had been dealt with in conference between the parties on 4 March 2014, and no further details are known about the circumstances of the bullying application.  The Order was issued with the consent of the parties.

The Order

Under the terms of the Order, the alleged bully is required to:

  • Complete any exercise at the employer’s premises before 8:00am;
  • Have no contact with the applicant alone;
  • Make no comment about the applicant’s clothes or appearance;
  • Not send any emails or texts to the applicant except in emergency circumstances; and
  • Not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

The applicant (ie. aggrieved person) is required:

  • Not arrive at work before 8:15am

The Parties have leave to relist the matter for further conference should there be any difficulty with the Orders.

Questions for Employers

While the terms of the Order may seem straight forward enough at first reading, upon deeper analysis prudent employers may find themselves asking:

  • How are these orders workable in practice?
  • What emergency circumstances would satisfy the no-communication requirement?
  • How would they impact on day-to-day operational requirements?
  • What administrative burdens might these orders create?
  • What would I need to tell my managers?
  • What is the potential impact on team-building activities like staff retreats and work related social functions?

Without knowing more of the facts in this particular case it is difficult to thoroughly answer these issues.

As a party to workplace bullying applications, employers will be given an opportunity to participate in the conference and mediation stage. However, it should be borne in mind that breaches of a Stop Bullying Order could possibly result in a financial penalty being imposed, the limits of which we have not yet seen.

Lessons for employers

Employers must be aware of the potential impact these new laws may have on their workplaces.

Conceivably, the FWC can now regulate the workplace interaction of your employees to a large extent through varied and potentially far-reaching orders under its workplace bullying jurisdiction.

These orders can prevent employees from having contact with each other, dictate arrival and departure hours on site, regulate communications and prevent employees from raising issues with each other without notifying superiors beforehand.

In the absence of further guidance from the FWC, employers are liable to be anxious and uncertain about the extent of their responsibility to keep warring parties apart following the issue of a Stop Bullying Order.

Given the issues identified, certainly no sensible employer would wish its workplace to be the subject of an Order by the FWC.

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[1] Applicant v Respondent, PR548852 (21 March 2014)

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