As the year goes on, a relatively small number of cases involving the Fair Work Commission’s (FWC) new power to make orders that bullying stop continue to trickle out. In the last month, two decisions have put the brakes on attempts by employees to use these powers outside of their intended area of operation.
Dismissal means bullying orders not available
In the first case, a former employee of ANZ sought an order to stop bullying. Although the application was made while he was still employed by ANZ, he was dismissed before the FWC ruled on the application. ANZ applied to the FWC to dismiss the anti-bullying application.
Before the FWC can make an anti-bullying order, it must be satisfied both that a worker is being bullied and that there is a risk that the worker will be continued to be bullied. In this case, Deputy President Gostencnik held that the employee’s dismissal meant that there could not be any risk that he would continue to be bullied at work, because he was no longer at work. The Deputy President did note that if the employee was reinstated in future, there would be nothing to stop him from making a fresh application if there was further bullying.
No interim reinstatement to allow bullying claim to proceed
The second case also involved an employee who made a bullying claim prior to her dismissal. Part of the alleged bullying was the applicant’s suspension during an investigation. The employee made a claim in the Federal Circuit Court that she had been unlawfully dismissed because she exercised a workplace right. As part of the application, she asked the court to reinstate her, pending the outcome of the case, to a position of unpaid suspension so that she could also pursue the anti-bullying application in the FWC (i.e. to avoid the circumstance described above).
In this case, Judge Cameron refused to make an interim reinstatement order. His Honour said that provisions under which the applicant brought her claim to the court protect employees from adverse action if they exercise workplace rights, but do not allow for the making of orders to facilitate the exercise of workplace rights. As such, he did not consider that making an order for the purpose of allowing the applicant to seek an anti-bullying order concerned the subject matter of the case before the court.
Further, his Honour considered that the balance of convenience in the case meant that the employee should not be reinstated on an interim basis, because this might frustrate any decision about the lawfulness or otherwise of the dismissal.
The most recent cases should serve to emphasise the relatively limited scope of the FWC’s power to make stop bullying orders. The FWC and the courts have sensibly held that once a person is dismissed or their engagement ceases, any recourse that they might have will lie elsewhere. The power to make stop bullying orders cannot be used for purposes for which they were not intended, or to try to reverse a dismissal.