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Employers well placed to assume control of anti-bullying measures

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This article was written by Charlotte Fenton.

According to a recent decision, by taking proactive steps to recognise and reduce bullying in the workplace, the Fair Work Commission (FWC) may be discouraged from issuing anti-bullying orders against employers.

Implications for employers

Employers may not be the subject of stop-bullying orders if they take proactive steps to mitigate the ongoing risk of bullying within the workplace.  What is appropriate will depend on the circumstances an employer is faced with. However, employers should think outside the box about how the risk of bullying in the workplace can be managed.  Restructuring roles (if possible) to separate the impacted employees may be one such effective mechanism. 

Background

Two bus drivers, Chris Kandelaars and Darren Lacey, applied for bullying orders against their manager, Andrew Cullen, and their employer, Murrays Australia (Murrays).

The workers' complaints suggested Cullen displayed unreasonable and, in some instances, threatening and intimidating behaviour. These complaints were taken to Murrays and, in response, Cullen's role was altered.  As a result, Cullen was no longer responsible for supervising and disciplining the drivers.  Murrays argued this operational change meant the drivers were no longer at risk of being bullied at work.

The FWC was required to determine whether the on-going risk of bullying had been mitigated sufficiently so the issuing of the stop-bullying orders was not necessary.  

Decision

Commissioner Roe accepted the workers' allegations that Cullen's actions amounted to bullying and created a risk to the workers' health and safety. 

Despite being satisfied that Cullen bullied the workers, the Commissioner maintained that the FWC's role "is not to punish, but to take steps necessary to stop bullying". In the Commissioner's view, Murrays had taken positive steps to substantially reduce the risk of further bullying by significantly changing Cullen's duties, to reduce any chance of further conflict. As this ensured in reality there was no risk of continued bullying in the workplace, the Commissioner refused to make the anti-bullying orders.

In final comments, the Commissioner acknowledged that the workers still felt vulnerable in Cullen's presence. The Commissioner therefore considered that the "essential further step" for Murrays to undertake was to recognise that the bullying had occurred. The FWC suggested this would send a strong message that Murrays did not support such behaviour, would assist managers with future instances of bullying and would also assist the workers to regain confidence and dignity to continue working at Murrays.  

 

Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen [2017] FWC 3136

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