Landmark FWC ruling: bullying jurisdiction backdated

by HCA19 Mar 2014
New anti-bullying provisions came into effect on 1 January this year, but according to a new ruling handed down by the Fair Work Commission (FWC), that doesn’t rule out employees coming forward over alleged bullying from previous years.
The case, Kathleen McInnes [2014] FWCFB 1440, related to a stop-bullying application made by McInnes on 9 January this year. She alleged that she was subjected to workplace bullying behaviour from November 2007 to May 2013. She did not refer to any bullying after May 2013, however she has been on leave since that time.
The issue for determination before the bench was whether the Commission has jurisdiction to hear and determine an application that involved alleged bullying conduct, which occurred prior to the commencement of the anti-bullying amendments to the Fair Work Act 2009 (Cth).
Although the FWC made it clear that the legislative scheme was not designed to be applied retrospectively, they ruled it appropriate to consider past behavior, if there was a risk that the employee would continue to be bullied at work. 

“Effectively, this decision allows employees to make applications based on past conduct and behaviour that they fear will continue in the future. Past occurrences of bullying conduct will be admitted as evidence, regardless of whether these events occurred prior to 1 January 2014,” said Athena Koelmeyer, principal and director of Workplace Law.

“Once an applicant demonstrates that they have been bullied at work, the Commission will consider whether there is a risk of ongoing or prospective future bullying. If such a risk is present, the Commission will make an order to stop the bullying.”

Rania Jones, M+K Workplace Relations Lawyer said the decision is “significant”, as “this clarification of the FWC’s jurisdiction in the area of bullying has the potential to lead to more employee complaints than expected and make those complaints more complex.”
Joydeep Hor, Managing Principal, People + Culture Strategies, will discuss ‘Workplace bullying: Navigating the new landscape’ at our 2014 HR Summit, held in Sydney on April 1-2. For more information, click here.


  • by caca 19/03/2014 1:08:51 PM

    Although I understand why they came to this judgement, I don't believe this will be good.
    I think it's a fair prediction to say that this will be used by disgruntled employees more so than any actual bullying.
    Also, it is not fair to be able to speak of events that may have happened well before this legislation. And prior to this legislation there likely was not much focus or documentation surrounding bullying.
    I also believe that these rulings will just put off employers from hiring staff, especially permanent (if there is even an inkling of any mental instability/sensitivity I bet those people won't even have a shot anymore).

  • by kevin 19/03/2014 2:07:22 PM

    "prospective future bullying" Given the difficulty in law to demonstrate precedence I would imagine it would be equally difficult to determine "prospective" ie as no set of circumstances are exactly the same what would be basis of such an assessment??

  • by Keith Warren 20/03/2014 12:03:07 PM

    This is a great result

    It will warn employers that they must have policies and procedures in place NOW to ensure it no longer happens.

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