An employee filed an anti-bullying application in the Fair Work Commission in September 2020 against a Director of his employer. The Director denied the allegations. The parties participated in Conciliation.

Commissioner Simpson stated that during Conciliation “substantial offers were made on a without prejudice basis to attempt to resolve the matter and it was somewhat surprising that the matter did not resolve given the offers exchanged when considered in light of the remedies available through the application before the Commission”.

The parties were ordered to file evidence and submissions so that the matter could be heard in February 2021.

The employee sought an adjournment and the parties filed a number of applications for production of documents.

The employee then took the matter to the Full Bench of the FWC and then the Federal Court in relation to the production of documents issue. The Full Court of the Federal Court dismissed the employee’s application in February 2022.

The employer had given an undertaking that it wouldn’t dismiss the manager until the anti-bullying application had been resolved. When no attempt was made by the employee to reagitate the application, the employer asked the FWC to dismiss it.

Commissioner Simpson noted that the “nature of the bullying jurisdiction is that it is intended that matters be dealt with promptly” and since the commencement of the matter, “I have harboured some reservations about the likelihood of [the employee], a middle aged man in a senior managerial role being capable of being bullied at work by an elderly woman well into her nineties, and that [the employee’s] safety could be at risk because of [her]”.

The Director provided undertakings including not to bully, initiate any contact with, or directly manage the employee in the future. She also completed a harassment course.

The Commissioner was “inclined to the view having considered the history of the matter that the [employee] has engaged in a legal strategy to forestall the substantive matter being finally heard and determined on the basis that it already has an undertaking that preserves the employment relationship”.

The employee’s application was dismissed.

👉 Take Out Point: The anti-bullying regime is there to deal with matters promptly and to provide remedies where the FWC is satisfied that an employee has been bullied, and there is a risk that they will continue to be bullied. It is not there to be used to preserve employment.

See: Damian Stephen [2022] FWC 1667 (29 June 2022)

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