Worker applies for anti-bullying order after employment: Can it proceed?

The Fair Work Commission (FWC) recently dealt with a case involving allegations of workplace bullying and subsequent termination of employment. The matter highlighted the interplay between anti-bullying applications and general protections claims, shedding light on the FWC's jurisdiction in such cases.

In this case, a worker lodged an application with the FWC, alleging bullying behaviour by three individuals during her employment. The worker argued that her application should not be dismissed despite her termination, citing unresolved factual issues and her intention to dispute the dismissal through a separate claim.

She argued that if reinstated, the risk of bullying would persist, making her current application relevant. The case raises questions about the FWC's ability to proceed with anti-bullying applications when employment has ended, and explores the potential impact of future reinstatement on such claims.

Background of the case

The worker initially filed an anti-bullying application with the FWC on 20 February 2024. She claimed that she had been bullied at work by three individuals, including an employee of the employer and two contractors providing services to the employer. The allegations stemmed from events that occurred during her employment.

In early June 2023, the worker had been the subject of workplace bullying complaints by a coworker. Subsequently, in late July 2023, she made her own workplace bullying complaints.

Specifically, the worker named a director of the employer alongside the employer's lawyer and a third-party investigator who was engaged to assist in an investigation into all of the workplace bullying complaints.

The employer had initiated an investigation into these complaints, which was later placed on hold as the worker was continually unfit for work. The investigation was further suspended due to the lodgement of the anti-bullying application.

On 12 April 2024, the worker informed the FWC that she had been dismissed from her employment. This development raised significant questions about the jurisdiction of the FWC to continue with the anti-bullying application.

The jurisdictional issue

The primary question before the FWC was whether it had the jurisdiction to issue any orders under the Fair Work Act 2009 (Cth) given that the worker was no longer employed and, consequently, there appeared to be no ongoing risk of alleged bullying.

The FWC emphasised the importance of this jurisdictional issue, stating:

"This decision concerns a jurisdictional issue only. Specifically, that the Commission may lack jurisdiction to issue any orders under the Act. This concern arises from the fact that it appears [the worker] was dismissed from her employment and, as a result, [the worker] is no longer a worker and there is no ongoing risk of the alleged bullying."

This quote highlights the crux of the matter - the FWC's ability to make anti-bullying orders is contingent on the existence of an ongoing risk of bullying in the workplace.

The worker's arguments

The worker contended that her application should not be dismissed. She argued that there were unresolved issues of fact that had not been properly investigated. Moreover, she informed the FWC of her intention to dispute her dismissal through a General Protections application under section 365 of the Fair Work Act.

The worker's main argument was that if she were to be reinstated as a result of her General Protections claim, the risk of bullying would remain real. She stated:

"Given the significant chance that I will return to work at [the employer], my current Application in relation to bullying has a very significant chance of success."

This argument aimed to persuade the FWC to either continue with the anti-bullying application or adjourn it pending the outcome of the General Protections claim.

The worker also submitted that it would be improper for the FWC to dismiss her application until her General Protections application had been determined, as there were still facts in dispute between her and the employer.

The employer's response

The employer argued for the dismissal of the anti-bullying application. They confirmed that the worker's employment had been terminated on 12 April 2024 due to redundancy.

The employer emphasised that, unless directed to reinstate the worker, there was no risk that she could "continue to be bullied at work."

The employer provided details about the termination process:

• On 10 April 2024, the worker was notified that the business was undergoing a restructure following an operational review, and that the worker's position as a receptionist would be made redundant.
• The worker was given until 4:00 PM on 11 April 2024 to respond to the notification of the restructure.
• The worker provided a response on Friday 12 April 2024.
• On 12 April 2024, the employer terminated the worker's employment and on 15 April 2024 provided the worker with a final pay slip.

Furthermore, the employer contended that the chances of a reinstatement order being made by the courts were "effectively nil."

They cited several reasons, including the redundancy of the worker's position and the apparent breakdown of trust and confidence in the employment relationship.

The employer also argued that adjourning the application until the conclusion of the General Protections application would be unfair to the persons named in the anti-bullying application, as such proceedings could take years to resolve.

The FWC's decision

After consideration of both parties' arguments, the FWC decided to dismiss the anti-bullying application. The Commission's reasoning was based on several key points:

1. The FWC's power to make anti-bullying orders is contingent on there being a risk of continued bullying at work. As stated in the decision:

"If the Commission is not satisfied there is a risk that [the worker] will continue to be bullied at work by the individual or group of individuals, the application must fail."

2. The FWC found that the possibility of the worker being reinstated was too remote to justify continuing with the anti-bullying application. The decision noted:

"There is no evidence supporting the assertion that [the worker] will be reinstated that would satisfy me that the application should continue, other than the mere existence of the General Protections application itself."

3. The Commission also considered the potential prejudice to the persons named in the anti-bullying application if the matter were to be left unresolved for an extended period. As stated in the decision:

"I agree with [the employer] that it is prejudicial to the Persons Named in this application to have this matter 'hanging over their heads' for an extended period, when, if reinstated, [the worker] is welcome to lodge a further application and the Commission would be in better position to entertain such application at that point in time."

In conclusion, the FWC dismissed the anti-bullying application under section 587(1)(c) of the Fair Work Act, finding that it had no reasonable prospects of success due to the lack of ongoing risk of workplace bullying.

This case serves as a reminder of the complexities surrounding workplace bullying claims and the importance of considering jurisdictional issues in employment law matters.

It also highlights the interplay between different types of claims under the Fair Work Act and the need for consideration of the circumstances when pursuing multiple avenues of recourse.