Commission junks worker's bullying claim as she was already dismissed from work

FWC says worker was provided with alternative applications

Commission junks worker's bullying claim as she was already dismissed from work

The Fair Work Commission (FWC) recently dealt with a case involving a worker who contended she was bullied in her workplace and sought orders to stop such bullying.

Meanwhile, the employer argued that the alleged bullying was reasonable management action.

Bullying allegations at work

According to the FWC, the worker was unemployed from the company when she filed the order to stop bullying in the workplace.

Hence, on May 10, 2023, the Chamber notified the worker that because she was no longer a worker, it would present a barrier to the FWC having the power to grant an order since she was no longer at risk of being bullied in the workplace.

However, while the Commission provided the worker with possible alternative applications, including filing an application involving dismissal, the worker remained adamant and pursued her bullying claims.

In her submission, the worker argued that her application should not be dismissed because:

  1. Her application was filed while she was still a worker.
  2. The legislative framework is flawed.
  3. She believed she was dismissed due to her bullying application.
  4. Other workers continued to be bullied.

Despite such claims, the employer argued that because the worker was already dismissed, there could no longer be a causal relationship between the alleged behavior and the risk to health and safety. Hence, the employer said the Commission should dismiss the worker's stop-bullying application.

HRD previously reported about a worker’s anti-bullying application after his employer objected to the possibility that he would return to the workplace. The latter argued there was no risk for bullying anymore since the contract had ended.

FWC's decision

In deciding the case, the Commission noted that its power goes only so far as to make orders if it is satisfied that there is indeed a risk that the worker will continue to be bullied.

"Therefore, even if the bullying allegations are substantiated (and I have made no findings of fact about it), the Commission has no power to make any consequent orders," the FWC said.

With regards to the worker's contention that she lodged the application when she was still a worker, the FWC said that the worker seemed to mistakenly believe that filing a stop-bullying application would protect her from dismissal.  

Further, the FWC also said that the worker's argument that the legislative framework is deficient should have been taken up with people who can amend legislation and not with the FWC.

Moreover, the worker's belief that she was dismissed because of her bullying application was also not a sufficient reason for the success of her application, according to the FWC.

Lastly, about the worker's concern that other employees still "at work" are being bullied, the Commission said that these do not concern the individual anymore as stop-bullying applications are personal to individual employees.

"The [worker] cannot run a class-action-like matter on behalf of her former colleagues," the Commission stated.

Considering all of these, the Commission ordered the dismissal of the worker's application to stop bullying.

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