Can a non-employee file a stop bullying order against a workplace?

Case deals with a business owner and its hired service provider

Can a non-employee file a stop bullying order against a workplace?

The Fair Work Commission (FWC) recently dealt with a case involving an individual who sought an order to stop bullying at work against a tennis club association.

In this case, the Commission first had to decide whether the individual was actually an employee in the tennis club before finally deciding on the bullying allegations.

Worker seeks non-entry to his ‘worksite’

At the time of application for an order to stop bullying, the individual regularly hired tennis courts at a tennis court complex managed by the Club involved in the alleged bullying.

The courts were hired to provide tennis coaching services through the individual’s own leisure company. The individual, then, was a member of the Club and an employee of his own company.

Previously, the individual’s business had provided services to the tennis club as the “tennis court administrator” for which it was paid. Their contract was later terminated by the Club, effective 28 September 2020.

The Commission noted that during the application, there was no existing contract between the individual’s leisure company and the tennis club through which the individual performed his work.

The individual argued in his application to the FWC the restoration of the contract between his company and the tennis club, along with refunds and a negotiated reasonable court hire fee rate.

He also sought for the Club not [to] enter his “worksite” and argued that the “bulk of the income [in dispute] came from the bullying and harassment in the breach of second contract.”

HRD previously reported about another worker’s anti-bullying application, after his employer objected to it, arguing that there was no possibility that he would return to the workplace.

In another case, an employer who was sued for bullying claimed the defence of “cultural differences,” arguing that “manhandling” is “part of [his] Asian culture.”

FWC’s decision

After careful examination, the FWC highlighted that the individual was not a worker in the tennis club business. Additionally, it said that the individual is a present employee and a worker in his own leisure company.

However, the Commission noted that such a conclusion should not be considered as “an indication of any preliminary view” of whether the individual has been bullied at work as “those matters are yet to be determined.”

Ultimately, despite not being an employee of the Club, the Commission said that the individual was still “eligible to apply for orders to stop bullying at work in relation to individuals he encounters at those premises while he is at work in his business.”

Meanwhile, whether the bullying allegations were true is yet to be determined by the Court.

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