In a somewhat controversial decision, the Fair Work Commission, in the exercise of its anti-bullying jurisdiction, under which it can order anti-bullying orders but not financial compensation, has made such an order against a Tasmanian real estate franchise because the franchise principal’ partner, who worked there as a sales administrator had, inter alia, befriended that applicant on Facebook and failed to bid her good morning.
Wells DP held that the complaints met the required legal criteria of “unreasonable behaviour” and that the social media befriending was evidence of “a lack of emotion maturity” by the principal’s partner and “was provocative and disobliging” and it was unreasonable, repeated and a threat to the applicant’s health and safety.
Sec 789FD of the Fair Work Act defines the concept of being bullied at work as follows;
“When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”
In declining to accept the employer’s argument that a stop bullying order was not required because the conduct was unlikely to be perpetrated again due to the adoption of an anti-bullying policy and manual, the Deputy President said “The evidence at hearing was that (the principal, the sales administrator and the employer) did not consider that any of the behaviour complained of constituted bullying. A lack of understanding as to the nature of the behaviour displayed at work has the proclivity to see the behaviour repeated in future by (the principal’s wife). I conclude that there is a risk of (the applicant) continuing to be bullied at work,” she said.
Roberts v View Launceston Pty Ltd (2015) FWC 6556 delivered 23 September 2015