As of 1 Jan 2014, the Fair Work Commission can deal with applications for an order to stop workplace bullying but only if a worker is bullied while they are (still) at work. This is obviously very problematic if a bullied worker has been sacked after lodging their bullying claim, as shown in the following recent legal case.
Sacking of a bullied worker invalidates a FWC anti-bullying application
A very recent (May 2014) Fair Work Commission ruled that a bullied ANZ Bank worker’s anti-bullying application was not valid as the bullied worker “is no longer at risk of ongoing workplace bullying at ANZ Bank” because the worker was sacked after having lodged his anti-bullying claim! The bullied worker’s claim was dismissed.
Background of the workplace bulling case
The ANZ Bank worker applied for a Fair Work Commission (FWC) order to stop workplace bullying, alleging he had been bullied by a number of his ANZ co-workers.
On 1 April 2014, The FWC Deputy President (Gostencnik) directed the parties (the bullied worker and ANZ) to file and exchange materials, and he also scheduled a hearing for 14 May 2014.
However, and disturbingly, less than 2 weeks later (on 11 April 2014), ANZ Bank sacked the bullied worker while he was on parental leave!
ANZ Bank then applied to the FWC for an order to dismiss the worker’s anti-bullying application.(under s587(1) of the Fair Work Act 2009). ANZ Bank argued the bullied worker’s application had no reasonable prospect of success because he no longer worked for the company!
The FWC Hearing
Under s789FF(1) of the Act, the FWC can only make orders to stop bullying if “there is a risk that the worker will continue to be bullied at work“.
The bullied worker told the Fair Work Commission that it should reject his employer’s (the ANZ bank) s587 application because the termination of his employment was “invalid”.
The bullied worker furthermore stated that ANZ Bank required him to respond to the ( workplace bullying) allegations which – he believed- led to his dismissal while he was on approved, parental leave, and which interfered with his right to take and enjoy that leave, and had an adverse effect on his wellbeing.
The bullied worker stated he had lodged an adverse action claim, alleging the ANZ Bank had dismissed him, in part, because he complained about his employment and lodged the anti-bullying application.
However, FWC Deputy President (Gostencnik) said:
“That [the worker] is taking steps to seek a remedy in relation to his dismissal and that may result in reinstatement at some point in the future does not have a bearing on the question that I must answer,” he said in dismissing the worker’s anti-bullying application.
“It is clear that [the worker] is no longer employed by ANZ.
“It seems to me clear that there cannot be a risk that [the worker] will continue to be bullied at [the ANz bank].”
The FWC Deputy President however said that the worker would be at liberty to make a fresh anti-bullying application if he was eventually reinstated (… as if…)
you can read the full text of the FWC legal case here: Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines  FWC 3408 (26 May 2014)
Application for an FWC order to stop bullying; Employee dismissed after application lodged; Application to dismiss because application for order to stop bullying has no reasonable prospect of success; No risk of continued bullying at work; Application to dismiss upheld; Application for order to stop bullying dismissed.
See our page ‘Bullying in the Workplace‘ for more informaton about the new anti-bullying provisions and how you can make an application.
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