FWC discusses how worker’s absence in workplace affected bullying claim
The Fair Work Commission (FWC) recently dealt with an anti-bullying application where a worker claimed he experienced bullying from senior management, while dealing with contract disagreements and health concerns.
The case brought forward important questions about how anti-bullying protections work when a worker is absent from the workplace, and what happens when there are multiple workplace issues happening at the same time.
In June 2024, a worker started an anti-bullying case against his employer, Easy Living Home Elevator Pty Ltd, saying he was bullied by the CEO and the supervisor.
The employer responded by saying the behaviour was reasonable management action and asked for the case to be dismissed.
After an unsuccessful attempt at resolving the dispute through conciliation in August 2024, the Commission organised a hearing for October 2024 and asked both sides to submit their evidence.
The worker did not provide any materials by the due date, leading the Commission to ask whether he still wanted to continue with the case. After receiving no response, the Commission warned that the case might be dismissed.
Worker’s mental health concerns
In early October, the worker explained the delay, stating: "[the worker] apologised for not filing any evidence and stated [the worker] has been seeing a counsellor."
The Commission showed flexibility by allowing more time, as noted in the decision: "The email indicated [the worker] could file material ahead of the hearing and that I would hear any objections to the late material being admitted at the beginning of the hearing."
When the hearing date arrived, the worker asked for a two-week postponement to seek further counselling support.
The Commission then decided to look at the case based on written submissions instead of holding a hearing.
Dispute about the employment contract
A significant issue in the background was disagreement about employment contracts. The worker argued he should work under a previous contract with a different company for a different role. The employer said a new contract was needed before the worker could return to work.
The Commission found that this situation had reached a standstill, with neither side willing to change their position on the contract matter.
The Commission's decision highlighted several key points.
First, as stated in the decision: "[the worker] has been absent from work since 20 June 2024. [the worker] has repeatedly stated [the worker] has mental health issues and has submitted a workers' compensation claim."
The ongoing absence played a crucial role, as the Commission noted: "I do not consider there is currently any prospect of the 'stalemate' between [the worker] and [the employer] being resolved and [the worker] returning to work for [the employer]."
This led to the final conclusion: "Given there is no risk of further bullying, there is no jurisdiction to make an order to stop bullying under s.789FF of the FW Act."
‘No immediate risk of bullying’
The Fair Work Act allows the Commission to dismiss applications that have no reasonable prospects of success.
In this case, because the worker was not at work and unlikely to return soon, there was no immediate risk of bullying that the Commission could address through its anti-bullying powers.
The FWC reminded workers that anti-bullying orders are designed to prevent future bullying rather than address past behaviour. This becomes relevant when workers are away from the workplace due to other issues such as workers' compensation claims or contract disputes.
