The Case

Mr Kandelaars commenced proceedings in the Fair Work Commission (FWC) against his employer, Murrays Australia Pty Ltd (Murrays) and Andrew Cullen, seeking orders that the bullying he had been subjected to cease.

Mr Kandelaars alleged his manager, Mr Cullen, had engaged in bullying conduct against him. Murrays indicated orders were not necessary given the steps they had taken to reduce the risk of bullying, which were:

• substantially changing Mr Cullen’s role in response to the bullying allegations;
• removing Mr Cullen’s responsibility for the supervision of drivers, investigation of incidents, and assessment and disciplining of drivers.

Mr Kandelaars submitted that Murrays’ actions were insufficient and he still felt at risk.

Verdict

Commissioner Roe had to decide whether a stop bullying order was necessary. He said, “The role of the Commission in these matters is not to punish but to take steps necessary to stop bullying.”

Section 789FF(1)(b) of the Fair Work Act 2009 (Cth) requires the FWC to be satisfied that there is a risk that a worker will continue to be bullied at work by an individual or group before it makes anti-bullying orders.

Commissioner Roe held that Murrays’ actions was sufficient save for a recognition that bullying had occurred. The FWC held that recognition of bullying was important as it:

• sends a strong message to Mr Cullen and hence should reduce the likelihood of any future bullying;
• would assist the drivers affected by Mr Cullen’s conduct to have this acknowledged; and
• would assist management to be more supportive of the drivers and to provide them with the assistance required for them to regain their confidence.

As such, the FWC declined to make a stop bullying order saying, “an Order is not necessary or appropriate in the circumstances of this case. Should further unreasonable behaviour occur, a new application can be made.”

Lessons For You

When faced with bullying in the workplace, it is important employers take action to eliminate the bullying as much as possible. This will help reduce the risk of an anti-bullying application being made to the FWC, and if one is made, assist in defending an application for an anti-bullying order.

By taking this preventative action rather than having orders imposed by the FWC, the employer can decide what action is taken in the circumstances.

An employer should:

• have procedures in place for employees to raise bullying complaints;
• properly investigate bullying complaints; and
• take active steps to reduce the risk of further bullying through disciplining the employee, providing further training, changing the perpetrator’s position or reporting lines, if appropriate, and providing counselling and assistance to those affected by the bullying.

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.