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May 2019

Stop-bullying order required to alleviate real risk of ongoing bullying

Stop-bullying order required to alleviate real risk of ongoing bullying

Mrs Taylor (2019)

The Case

Hoad Water Cartage Pty Ltd (Hoad) employed Mrs Taylor as its HR, Finance and Administration Manager. Hoad also employed Mrs Taylor’s husband, who was Director of Finance, Managing Director and a co-owner of the business. Given the couple’s respective roles, they were required to work closely together. In November 2017, Mr and Mrs Taylor acrimoniously separated. Mr Taylor thereafter became critical of his wife’s performance and alleged that she was conspiring to remove him from the business.

Among other things, Mr Taylor:

  • permitted his wife to be referred to as “that f*ing woman” by another employee;
  • was rude and discourteous on many occasions, telling Mrs Taylor to “stop wasting his time”;
  • micromanaged Mrs Taylor, requiring her to provide a daily list of tasks she had undertaken, despite no indication she was not properly performing her duties;
  • continually questioned her about the family law proceedings; and
  • directed other employees to exclude her from some of her duties.

Mrs Taylor made a complaint to SafeWork SA, which required Hoad, through a series of Improvement Notices, to rectify the safety risks to Mrs Taylor’s psychological wellbeing caused by Mr Taylor. Nevertheless, Mr Taylor continued his behaviour.

The Federal Circuit Court thereafter made orders in the family law proceedings to try to manage the relationship in the workplace. This also failed and resulted in Mrs Taylor receiving two formal warnings from her husband.

Mrs Taylor filed for a stop bullying order in the Fair Work Commission (FWC). Mrs Taylor also made a workers’ compensation claim, and when the bullying continued, she was declared unfit for work.

Verdict

In hearing the matter, the FWC was satisfied that Mr Taylor had engaged in bullying conduct. Given he provided no apology for his actions, the FWC considered a stop bullying order was necessary, as there was a real risk of ongoing bullying at work.

Lessons

The FWC will make stop bullying orders if it finds bullying has occurred and that there is a real risk of further bullying if an order is not made.

Employers must take all steps necessary to reduce the risk of bullying occurring in the workplace, including through anti-bullying policies, education, directions and appropriate disciplinary consequences, when required.

The risks of failing to take this action are:

  • breaches of health and safety legislation, leading to possible prosecutions and other penalties;
  • unfair dismissal, general protections and workers’ compensation claims;
  • damage to the employer’s reputation and potential profitability;
  • low morale;
  • high staff turnover; and
  • higher insurance premiums.
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