A recent Stop Bullying Order[1] by the Fair Work Commission has illustrated the range of unforeseen restrictions that could be imposed on an employer’s workplace following an agreed resolution of a workplace bullying claim.
The FWC’s Order raises real issues about the practical consequences of restrictions imposed on parties’ workplace interaction, given the nature of the modern workplace.
What did the Order say?
In this instance, the FWC’s Order resulted from an FWC conference held as part of the process followed in dealing with workplace bullying applications.
[If you’d like a quick recap of the FWC’s anti-bullying determination process, visit to our handy infographic]
The Order arose out of an agreement between the parties to resolve the bullying application.
The parties are not named in the Order, however, two other persons are named; ie. a Mr Hallam and a Ms Scholes.
The relationship of Mr Hallam or Ms Scholes to the parties is not identified in the Order.
The Order is broken into two parts:
- The first part imposes restrictions on the alleged workplace bully (ie. the subject of the application).
- The second part imposes one restriction on the person who brought the bullying claim (the applicant).
The alleged bully’s restrictions
The Order sets out the restrictions as follows:
The employee, the subject of the application:
1. Shall not exercise on the balcony in front of, or in the vicinity of, the applicant’s desk between 8:15am and 4:15pm.
2. Shall not speak to the applicant in circumstances where there are no other individuals within listening-range.
3. Shall make no comment about the applicant’s attire or appearance.
4. Shall not send any emails to the applicant unless the substance of the correspondence is work-related and either Mr Hallam or Ms Scholes is also an addressee.
5. Shall not send any text messages or call the applicant on her personal telephone unless those messages are in relation to an immediate work-related emergency.
6. Shall not raise any issues relating to the applicant’s work capabilities or job performance without notifying Mr Hallam or Ms Scholes beforehand.”
The applicant’s restriction
The Order expressed the applicant’s sole restriction as follows:
Orders to be followed by the employee, the applicant:
1. The applicant shall not arrive at work before 8.15 a.m.
What if those restrictions applied to your workplace?
There are many unforeseen problems that could arise for employers because of terms agreed to by the parties.
Take these hypotheticals as examples of practical difficulties an employer could face.
Hypothetical One
“Tim” is the subject of the application.
“Jenny” brought the application.
The application was resolved in similar circumstances to the profiled case.
Tim is subject to a restriction in identical terms to that of item 2 above.
One day Tim requests Jenny’s assistance with a work task.
Tim could see that another employee “Fred” is in the office a few metres behind Jenny.
Tim was comfortable that he has not breached the FWC’s Order because in his opinion Fred was in hearing range.
Fred subsequently leaves the room but Jenny does realise because Fred was behind her.
When Jenny discovers she is alone with Tim, she becomes angry.
Jenny considers that Tim has defied the FWC’s Order by speaking to her when no one was in earshot.
Jenny storms into the boss’s office and complains about Tim’s “flagrant disregard” of the FWC’s Order.
Jenny says, “Enough is enough!” and demands Tim be fired.
The boss reaches for headache tablets…
Hypothetical Two
The same employer is preparing an application for a large government tender.
A couple of employees are away sick with the flu.
The deadline is midday on Friday.
With people being away sick, it will be ‘all hands to the pump’ to meet the deadline.
Late on Thursday afternoon, the boss asks all staff to start at 6am on Friday so they can be sure that the tender will be finished and submitted on time.
Jenny informs the boss that she cannot come to work early because the Order prevents her from being there before 8.15am.
The boss reaches for more headache tablets…
Takeaway points
Employers need to be aware of the potential impacts on their workplaces caused by an agreed resolution of a workplace bullying claim to the FWC.
Employers’ ability to plan or respond to operational needs could be impacted by restrictions on workplace interaction between the parties.
A “it has nothing to do with me, let the FWC sort it out” approach by employers could see them suffering unexpected and unwanted outcomes.
The hypotheticals in this article are merely two examples of the potential pitfalls for unwary employers.
The possibility of these outcomes should serve as a warning to employers not to take lightly any report of workplace bullying.
A culture of bullying prevention together with immediate investigation of workplace bullying complaints remains an employer’s best means of avoiding the spectre of intervention by the FWC.
[1] Order – Applicant v Respondent PR555329 (10 September 2014)
