Worker argues 'genuine belief' against 'risk of bullying'
The Fair Work Commission (FWC) recently dealt with a case involving a worker arguing that she was at risk of being bullied at work.
However, the Commission noted that in the case, it would not determine whether or not the worker was actually bullied at work. Rather, it would examine whether there is indeed a risk that the worker will continue to be bullied.
The worker who applied for an order to stop alleged bullying held a “genuine belief” that she had been bullied at work.
However, the case noted that at the time of her application, the worker was unfit to return to work and had been unfit for over 12 months.
While the worker argued that she was willing to return to work once her health improved, she did not provide any medical document as to when that would occur.
“The [worker] has asked that her Application be placed on hold, or left in abeyance, pending the resolution of her disputed claim for worker’s compensation, and pending her being in a position to be fit to return to work,” the Commission stated.
Meanwhile, the employer denied that the worker has ever been bullied at work and argued that it had well-founded reasons for carrying out management actions involving the worker.
It argued that the worker’s performance management from 2020 to 2022, the written correspondence and communications with the worker regarding her performance issues, and the placement of her on a performance improvement plan were reasonable management actions acted out in a reasonable manner.
The employer also said that the worker’s application was bound to fail as there was no risk of any bullying continuing given that the worker had not attended work for a while, and there was no clear indication as to when the worker would return to work.
HRD previously reported on a worker’s anti-bullying application after his employer objected to the possibility that he would return to the workplace, saying that “the contract is done. There is no more risk.”
In another case, a worker claimed that he was bullied to take unpaid leave but the employer argued that the worker voluntarily resigned from his employment.
Ultimately, the Commission dismissed the worker’s application as it was satisfied that there was no risk that the worker would continue to be bullied at work given that she was not at work and unfit to attend work.
However, it noted that should the worker become fit to return to work, she could always make a new stop bullying application with the Commission.
“Equally, I do not consider it fair and just for the Commission and the [employer] to essentially be left in abeyance whilst everyone awaits updates or other advice from the [worker] going forward as to her fitness, and/or the status or progress of her disputed worker’s compensation claim,” the FWC stated.
