The Case

THDL (2021)

The applicant made an application to the Fair Work Commission (FWC) for a stop bullying and sexual harassment order against two people employed in the warehouse complex where the applicant had previously worked. It is not clear what the nature of the behaviour involved; however, the applicant had already obtained intervention orders prohibiting the parties from being within 200m of each other.

The Verdict

The FWC referred to the applicant as ‘THDL’ to preserve her anonymity.

The FWC dismissed the stop bullying and sexual harassment application, finding:

• THDL’s business had moved out of the warehouse complex where the two people worked; and
• given this and the existence of the intervention order, the FWC considered there was no risk of future bullying or sexual harassment in the workplace.

The Lessons

On 11 September 2021, the new anti-sexual harassment jurisdiction commenced, as part of the Respect@Work reforms.

However, both the stop bullying and stop sexual harassment jurisdictions target the risk of future harm. Where the risk has passed, the FWC can exercise its discretion not to make an order.

It is not clear why the FWC thought the risk of bullying and sexual harassment had passed because the parties were not in close physical contact. As we know, bullying and sexual harassment can occur online and by other means, and still constitute a sufficient connection to the workplace, in certain circumstances. So do not assume such orders won’t be made in future.

Make sure you review, refresh and update your workplace anti-bullying and anti-harassment policies.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.