New anti-bullying provisions came into effect on 1 January this year, but according to a new ruling handed down by the
Fair Work Commission (FWC), that doesn’t rule out employees coming forward over alleged bullying from previous years.
The case, Kathleen McInnes [2014] FWCFB 1440, related to a stop-bullying application made by McInnes on 9 January this year. She alleged that she was subjected to workplace bullying behaviour from November 2007 to May 2013. She did not refer to any bullying after May 2013, however she has been on leave since that time.
The issue for determination before the bench was whether the Commission has jurisdiction to hear and determine an application that involved alleged bullying conduct, which occurred prior to the commencement of the anti-bullying amendments to the Fair Work Act 2009 (Cth).
Although the FWC made it clear that the legislative scheme was not designed to be applied retrospectively, they ruled it appropriate to consider past behavior, if there was a risk that the employee would continue to be bullied at work.
“Effectively, this decision allows employees to make applications based on past conduct and behaviour that they fear will continue in the future. Past occurrences of bullying conduct will be admitted as evidence, regardless of whether these events occurred prior to 1 January 2014,” said
Athena Koelmeyer, principal and director of Workplace Law.
“Once an applicant demonstrates that they have been bullied at work, the Commission will consider whether there is a risk of ongoing or prospective future bullying. If such a risk is present, the Commission will make an order to stop the bullying.”
Rania Jones, M+K Workplace Relations Lawyer said the decision is “significant”, as “this clarification of the FWC’s jurisdiction in the area of bullying has the potential to lead to more employee complaints than expected and make those complaints more complex.”
Joydeep Hor, Managing Principal, People + Culture Strategies, will discuss ‘Workplace bullying: Navigating the new landscape’ at our 2014 HR Summit, held in Sydney on April 1-2. For more information,
click here.
