Workplace bullying – it’s no longer all in the past

Recent amendments to the Fair Work Act may give current relevance to past incidents of bullying in the workplace.

The amendments have now been considered by the Full Bench of the Fair Work Commission for the first time. Employment law specialist Sallie Emmett shares her views.

Employer conduct prior to the amendments may be relevant

The amendments to the Fair Work Act 2009 (Cth,) which began operation on 1 January 2014, allow employees to make “stop bullying claims” to the Fair Work Commission (FWC). They have been considered by the Full Bench of the FWC for the first time in a decision handed down on 6 March 2014.

The new provisions allow employees who have been bullied at work to seek and obtain orders from the FWC to prevent them from being bullied in the future. To obtain such an order an employee must establish that:

  1. they have been bullied at work; and
  2. there is a risk that they will continue to be bullied at work.

The provisions do not penalise or punish employers for their conduct or allow compensation to be awarded to employees. They focus on the prevention of future conduct and also refer to “repeated acts of bullying” rather than “one off” incidents.

In the circumstances considered by the FWC, the applicant complained of conduct that had occurred over a 7 year period, most recently an incident that occurred in May 2013. The applicant wanted to establish that the bullying had actually occurred at the workplace over that period and that based on that evidence there was a likelihood that the conduct may occur in the future.

So, is conduct that occurred prior to 1 January 2014 relevant and if it is, does that mean that the new provisions operate retrospectively?

The employer argued no – that taking into account conduct what had occurred prior to 1 January 2014 would result in the new provisions having a retrospective effect not intended by the legislation.

The FWC did not agree. It made a distinction between “legislation having a prior effect on past events” and “legislation basing future action on past events”. It found that as the provisions focussed on preventing future conduct, evidence of conduct that occurred prior to the operation of the new provisions can be used to establish the fact that such conduct is likely to occur in the future.

That means that employees who have been bullied prior to 1 January 2014 may seek to rely on such conduct if they wish to obtain directions to restrain the conduct of individuals in the future.

What should employers do?

Employers may now be subject to claims relating to conduct that has already occurred, but they can take steps to limit the risk that such conduct gives rise to bullying in the future.

If bullying claims have not yet been resolved, employers should ensure that any complaints of bullying are appropriately addressed, documented in detail and determined, so the impact of such conduct in the future is limited.