Case shows importance of timing when seeking workplace anti-bullying protections
The Fair Work Commission (FWC) recently dealt with an application where a worker sought anti-bullying orders after his employment ended. The worker, who had recently returned from parental leave, argued that he was bullied at work prior to the end of his employment.
The case raised important questions about the timing of anti-bullying applications and the rights of workers under the Fair Work Act 2009.
The worker's application, made shortly after his departure from the workplace, tested the boundaries of workplace protections and highlighted the intersection between dismissal and anti-bullying provisions.
The worker had been employed as a casual draftsman at Prominent Fluid Controls Pty Ltd for approximately 9.5 years. After returning from parental leave, he maintained a two-day work week schedule to balance his family responsibilities.
The engineering manager, who had 30 years of experience with the company, held significant authority over the engineering department. While the employer attempted to downplay his decision-making power, the Commission found he had substantial control over hiring and firing decisions, though he kept the chief executive officer informed of important matters.
On 16 July 2024, the engineering manager initiated a discussion about increasing the worker's schedule to four days per week, citing high workload. When the worker mentioned his newborn baby might prevent this arrangement, the manager asked him to consider it and discuss it with his wife.
The situation came to a head during a second meeting on 17 July 2024. When the worker confirmed he couldn't commit to four days, the engineering manager stated: "[The worker], I don't think this is going to work. If you are unable to commit to 4 days per week, it would be better for you to finish up."
The worker's response, acknowledging a replacement and referencing his baby, became a key point of discussion in the proceedings. He left the workplace that day and didn't return.
The employer then took administrative steps, including removing the worker's IT access and processing his final pay on 24 July 2024.
The Commission assessed conflicting evidence from both parties. The engineering manager's testimony showed inconsistencies about meeting dates, which affected other witnesses' statements. In contrast, the worker's evidence remained largely consistent about the events leading up to 17 July 2024.
The Commission noted: "Their evidence generally aligns on the critical matter of [the manager] telling [the worker] on 17 July 2024 that if he could not work 4 days per week, it would be better if he finished up."
The decision explained: "It was both intended and probable that this conduct would have the effect of bringing the employment of [the worker] to an end. The fact that [the worker] then said 'It's fine, I don't need to come' or words to that effect is not evidence of his resignation. It is evidence of his acceptance of what he was being told by [the manager]."
The Commission ultimately found: "[The worker's] employment was terminated at the initiative of [the employer]. In other words, he was dismissed.
At the time of his application on 29 July 2024, he was no longer a worker for the purposes of s.789FC of the Act. Accordingly, he was not entitled to apply for orders to stop bullying at work."
This highlighted that workers must still be employed when making anti-bullying applications under the Fair Work Act 2009, as the protections apply only to current workers under the Act.
