In this case update, the NRA Legal team reviews the recent Fair Work Commission decision on 16 November 2015 of Sharon Bowker, Annette Coombe and Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Unions of Australia, The, Victorian Branch and Others [2015] FWC 7312. This decision provides much-needed insight into the scope of the stop bullying orders that the Commission may impose.
Since the anti-bullying jurisdiction’s inception on 1 January 2014, a worker in a constitutionally covered business who reasonably believes that he or she has been bullied can apply to the Fair Work Commission for an order to stop bullying. Bullying will have occurred when a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour constitutes a risk to health and safety.
The most recent quarterly report (April – June 2015) from the Fair Work Commission recorded 163 applications for an order to stop bullying at work. Despite many of the applications being solved prior to proceeding, several were heard and decided by the Commission.
FACTS
- Three employees, two of DP World and another of the Maritime Union of Australia, experienced serious and repeated instances of bullying.
- The Commission found that Ms Bowker and Ms Coombe were bullied at work during the period of mid-2013 to July 2015, and that Mr Zwarts was bullied at work during the period of August 2013 to July 2015.
- The instances were significant, with the Applicants collectively raising in excess of 212 complaints and concerns, and alleging 37 instances of bullying behaviour.
DECISION
Despite each of the Applicants receiving a full bill of health to return to work, they still expressed serious reservations about their capabilities to return. Deputy President Gostencnik reasoned that this was because there was still a high risk that these workers would continue to be individually bullied.
TAKE AWAY POINTS
- Employers must comprehensively address workplace complaints and issues
- The starting point for employers is a comprehensive policy, but that is not the end of the story
- Employers should consider the extent to which stop bullying orders may impact the workplace, and take preventative measures
- Employers should be mindful of their duty of care and the safety of all employees
- Employers should be aware that incidents outside of work can be considered workplace incidents
- Update your social media policy
- Employers should consider ways in which they can engage with employees in relation to their social media accounts.
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If you your business need assistance with a workplace matter, contact NRA’s Employment Team on 1800 RETAIL (738 245).