One of the first workplace bullying applications[1] of 2014 faced multiple jurisdictional challenges by the employer and interested parties on the grounds that the alleged bullying occurred over the 6 years prior to 1 January 2014; the date that the Fair Work bullying legislation commenced.
The Fair Work Commission rejected each of the arguments raised by the employer and left itself open to considering all aspects of behaviour that have culminated in a ‘stop the bullying’ application, whether it occurred before 1 January 2014, or after.
As applications to the FWC continue, this decision has wide-reaching implications for employers who find themselves faced with potential workplace bullying.
Background/The Facts
The employee in question alleges that she has been subjected to workplace bullying and harassment over a 6-year period, dating back to 2007, the most recent of which was May 2013.
This begged the question, does the Fair Work Commission have jurisdiction to hear and determine an application for an order to stop the bullying based on conduct which occurred prior to the commencement of the new laws?
The employer argued ‘no’ for the following reasons:
- a worker can only be bullied at work from a point in time when that legal characterisation of ‘bullying’ was in force (i.e 1 January 2014); and
- it would give the new bullying provisions retrospective operation or application in circumstances where Parliament did no intention.
However, the Full Bench of the FWC, unanimously decided ‘yes’.
The Decision
The Full Bench’s reasons made it clear that the FWC will not be prevented from taking behaviour that occurred before the new jurisdiction into account when dealing with workplace bullying applications.
The Full Bench suggested that the phrase ‘is at work’ needed to be given the correct emphasis, [it] “simply provides the context in which the bullying behaviour has taken place” and does not suggest this can only mean conduct that occurred on or before 1 January 2014.
The legislation does not operate retrospectively, rather it bases future action on past events, and hence is not properly characterised as retrospective.
The FWC must consider past events as one of three requirements to be met before an order is made, but no adverse action is attached to past bullying conduct.
Such context merely provides the basis for a prospective order to stop future bullying conduct.
Finally, the FWC was eager to again reiterate that this legislation is not directed at punishing past behaviour or compensating victims, rather it is concerned with stop future behaviour.
The application has since been sent back to the original FWC Commissioner for further hearing and determination of the remaining issues.
Lessons for Employers
The FWC is moving quickly and effectively to iron out any creases in its new workplace bullying jurisdiction, as applications for orders to stop the bullying continue to mount.
It is now clear that, in current applications, patterns of bullying behaviour occurring before 1 January 2014 may be taken into account by the FWC.
Two major jurisdictional objections have been rejected and this decision means that employers cannot avoid the reach of the FWC over pre-1 January bullying conduct, on the basis of a technicality.
Investigating allegations of workplace bullying will be more important than ever, and getting that investigation right the first time, will place an employer in good stead if or when it comes under scrutiny.
[1] Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014)
