As an employer, being faced with a ‘please explain’ by the Fair Work Commission into allegations of workplace bullying can be a daunting prospect.
However, in their haste to show their actions are squeaky clean many employers overlook the importance of firstly scrutinising whether the aggrieved employee is entitled to bring a workplace bullying claim.
This recent decision which prevented a teacher from seeking a ‘stop bullying’ order is a timely reminder that not all workers attempting to bring a workplace bullying claim are actually entitled to do so.
In June 2014, Ms S.W. made an application under the Fair Work Act’s (FW Act) workplace bullying laws for an order to stop bullying conduct she allegedly had suffered (and would continue to suffer) in her workplace.
Ms S.W, a public school teacher in Western Australia, cited her employer as both the W.A Department of Education and the State.
Both alleged employers argued against the application on jurisdictional grounds.
Workplace bullying definition
In this case, a close examination of the workplace bullying definition, as it applied to the worker, was required.
Under the FW Act, a worker is bullied at work if:
- while the worker is at work in a constitutionally-covered business:
- an individual;
- or a group of individuals;
- repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
- that behaviour creates a risk to health and safety.
The Department of Education argued that while it had been incorrectly cited as an employer, nevertheless, a public school was not a “constitutionally covered business” under the FW Act thus preventing the claim from being brought.
The same reasoning was extended to the State of Western Australia.
The Employee’s Argument
Ms S.W argued that the FW Act did apply.
In support of her argument, the employee contended that:
- WA Department is her employer and that the FW Act applied to her employment because it was ‘binding on the Crown’;
- The Department had an Australian Business Number (ABN);
- ‘state public sector’ employment was defined in the FW Act;
- the FW Act extends the definition of national system parties to a “referring State”; and
- the objects of the FW Act demonstrate the ‘broad coverage’ of the FW Act and because of that factor the FWC had the necessary jurisdiction to hear her claim.
The FWC observed that in order for the anti-bullying jurisdiction to be engaged, it must be found that a worker has been bullied at work within the meaning of the FW Act.
The FWC recognised that the initial focus of the definition is the workplace where the applicant is at work when the alleged unreasonable conduct takes place.
That is the alleged bullying conduct must have taken place when a worker is at work in a constitutionally covered business.
The workplace, a public school operated by the Department of Education, could not be considered a constitutionally covered business and having an ABN did not in itself identify the Department as a corporation.
The workplace was not:
- conducted by the Commonwealth or
- a trading or financial corporation.
The FWC observed that the absence of a corporate entity meant that the Department could not be a constitutional corporation.
Even if the bullying did occur as alleged, and despite an alleged risk of the bullying continuing, the FWC was not able to make a finding that the employee had been bullied at work within the meaning of the Act.
The FWC did not have jurisdiction to determine the merits of the claim and the employee’s application was dismissed.
Lessons for Employers
This case highlights that not all employees are entitled to bring a workplace bullying claim under the FW Act.
An important step, therefore, for employers faced with an FW Act workplace bullying claim will be to assess whether the employee is actually entitled to bring the legal action.
That said, technical legal defences should never become part of an employer’s overall workplace bullying defence strategy.
If a technical defence fails, the employer concerned will find its workplace actions placed under the FWC’s scrutiny as that body determines the merits of the relevant worker’s bullying claim.
There is still no better way to defend workplace bullying allegations than by being able to demonstrate that the alleged conduct did not occur, or if it did – the conduct did not amount to workplace bullying.
Upon receiving a report of workplace bullying, the only way for an employer to be able to establish whether or not the report is accurate is to conduct a procedurally sound workplace investigation.
An employer’s self-serving statements about its attitude to workplace bullying will be given short shrift by the FWC if it cannot show that it took the complaint seriously.
 Ms S.W  FWC 3288