The Fair Work Commission’s recently published annual report has provided insight into the amount of workplace bullying claims brought before the FWC and the way they were handled.
The report showed that in the 1 January to 30 June period of 2014, the FWC:
- Received more than 100 000 unique website hits about workplace bullying
- Dealt with more than 3500 telephone inquiries
- Processed 343 workplace bullying applications;
- Conducted more than 270 anti-bullying conferences and hearings, and
- Finalised 21 bullying claims by a decision.
In our recent infographic we summarised the FWC’s process for dealing with claims under its anti-workplace bullying jurisdiction.
As highlighted by the FWC’s General Manager, Bernadette O’Neill in the annual report, the Commission’s focus is to resolve the claim and enable normal working relationships to continue.
The FWC can only make an order where bullying behaviour has occurred and there is a risk that it could continue.
Finalisation of Matters
Of a total of 197 finalised workplace bullying claims:
- 59 were withdrawn early in the case management process
- 34 were withdrawn prior to proceedings (eg. before before holding a listed conference, hearing, mention or mediation)
- 63 were resolved during the course of proceedings
- 20 were withdrawn after a conference or hearing and before a decision
- 21 were finalised by a decision of the FWC
Finalisation by FWC Decision
In the report, finalised claims were divided into “dismissed” and “granted” categories.
Of a total of 20 applications dismissed:
- 3 were dismissed due to a successful jurisdictional objection (eg. by the employer)
- 4 were dismissed because bullying was not found or there was no risk of bullying continuing
- 13 were dismissed pursuant to s.587 of the Fair Work Act 2009 (eg. application not made in accordance with FW Act / frivolous or vexatious / no reasonable prospects of success)
Of a total of 21 workplace bullying applications finalised by FWC decision, only 1 order was granted.
In that instance the FWC had determined that the worker was at risk of continued bullying.
Putting the stats in context
It would be shortsighted for employers to focus on the fact that only one hearing has brought about a bullying stop order during the 6 month period.
The FWC’s report points out that around 350 workplace applications were received, with a gradual increase in applications lodged each month.
In that regard, the FWC pointed out that “trends are still emerging” and it is too early in the life of the workplace bullying jurisdiction to “accurately predict how it might mature.”
As we have explained in a previous article, stop bullying orders can also be made by the FWC with the consent of the parties (eg. during the conciliation/ mediation process).
The FWC’s report provides detail of one such resolution during the conciliation of a workplace bullying claim brought in March 2014.
In that instance a hospitality worker claimed to have been bullied for over a year by another worker.
The bullying complained of included the other worker “raising her voice and making offensive statements.”
The employer and the alleged bully were listed as respondents to the claim.
Prior to the conciliation process, the employer and the alleged workplace bully were given an opportunity to respond.
The employer provided a detailed response:
- Indicating that it believed the matter to be an isolated incident and
- Setting out the steps taken to resolve the issue, including interviewing the staff who were involved.
The alleged workplace bully responded by indicating that the behaviour was out of character.
Ultimately the matter was resolved during the conciliation process.
The parties agreed that:
- A formal warning would be issued to the alleged workplace bully;
- Mediation between the two co-workers would occur, and
- Until mediation occurred, they would not be rostered together – if possible.
The workplace bullying jurisdiction is in full swing with an average of 60 applications per month having been received by the FWC in the reported 6 month period.
Although only one stop bullying order has been issued following a contested hearing, it would be shortsighted to focus only on that statistic.
Employers need to bear in mind that just like other causes of action before the FWC (eg. unfair dismissal, general protections claims) not every matter will be determined at a contested final hearing.
Litigation is often resolved by agreement during the conciliation process, rather than the parties exposing themselves to the expense and uncertainty of undergoing a contested hearing.
Even where a matter is resolved by mutual agreement, as the reported case study shows, the employer may end up being required to maintain an ongoing hands-on involvement in managing the disputing parties – something that many employers would consider an unwanted burden.
As the FWC warns in its report – it is still too early in the life of the workplace bullying jurisdiction to make predictions about future trends.
In the meantime, employers would be well advised to continue their focus on prevention.
 Delivering public value, Fair Work Commission Annual Report 2013-14, FWC, October 2014