Understanding Stop Bullying Orders Under The Fair Work Act 2009 (Cth)

At Bentham Sydney Employment Lawyers, we regularly advise both employers and employees on the complex and often sensitive issues surrounding workplace bullying. The recent decision by the Fair Work Commission (FWC) in a stop bullying case highlights the meticulous process the Commission undertakes when determining whether workplace bullying has occurred and what steps, if any, should be taken to prevent it from continuing.

The Case: Application by Josh Whiteford [2024] FWC 552)

On 28 August 2022, Mr. Josh Whiteford lodged an application under section 789FD of the Fair Work Act 2009 (Cth), seeking an order to stop workplace bullying. Employed by Apple Pty Ltd, Mr. Whiteford initially identified four colleagues in his application, but this was later narrowed down to a single person—Mr. Nicholas Horton, who had been Mr. Whiteford’s manager for a period.

The allegations arose partly from an internal investigation initiated by Mr. Horton, which involved monitoring Mr. Whiteford’s performance. This monitoring was central to the dispute, with Mr. Whiteford alleging that it amounted to bullying.

The Legal Framework

Under section 789FD of the Fair Work Act 2009 (Cth), a worker is considered to be bullied at work if an individual or a group of individuals repeatedly behave unreasonably towards the worker, and that behaviour creates a risk to health and safety. Importantly, the Act also specifies that reasonable management action carried out in a reasonable manner does not constitute bullying.

For the Commission to issue a stop bullying order, it must be satisfied that the worker has been bullied and that there is a risk of the bullying continuing. The Commission cannot order the payment of compensation in these matters; its focus is on preventing further bullying.

Employer's Jurisdictional Objections

In response to Mr. Whiteford's application, Apple Pty Ltd raised jurisdictional objections. The company argued that the actions taken by Mr Horton were reasonable management actions conducted in a reasonable manner. Moreover, Apple contended that there was no ongoing risk of bullying since Mr Horton was no longer managing Mr Whiteford, and they had minimal interaction at the workplace. On this basis, Apple sought to have the application dismissed.

The Hearing

The matter proceeded to a hearing on 14 December 2023, where both parties were self-represented. Mr Whiteford presented evidence from several colleagues, including Mr Nicolas Zenteno, Ms Kristelle Wachs, and Ms Rochelle Rye. Their testimonies supported Mr Whiteford's claims that Mr Horton's management style and actions had been detrimental to his well-being and that the formal performance management process could have been handled more effectively.

On the other hand, Apple Pty Ltd maintained that the monitoring of Mr Whiteford’s performance was standard practice and necessary given the concerns raised by his colleagues. The company also provided a detailed chronology of events, showing that Mr Horton’s involvement in the matter was limited and that the formal investigation was handled by others within the company.

Commission’s Considerations

In deciding the case, the Fair Work Commission meticulously examined whether the actions taken by Mr. Horton and Apple Pty Ltd amounted to unreasonable behavior that posed a risk to Mr. Whiteford’s health and safety. The Commission also had to determine if there was a continued risk of bullying, which would warrant the issuance of a stop bullying order.

The Commission’s decision would be based on the evidence presented, the credibility of the witnesses, and the applicability of the relevant legal standards under the Fair Work Act 2009 (Cth).

Lessons for Employers and Employees

This case underscores the importance of understanding what constitutes reasonable management action and how it differs from bullying. Employers must ensure that their performance management processes are fair, transparent, and consistent with company policies. Employees, on the other hand, should be aware of their rights under the Fair Work Act and seek legal advice if they believe they are being bullied at work.

At Bentham Sydney Employment Lawyers, we are committed to providing clear, practical advice on workplace bullying issues. Whether you are an employer needing guidance on how to handle a complex employee situation or an employee seeking protection from workplace bullying, our team is here to assist you.

For more information or to discuss your specific circumstances, please contact Bentham Sydney Employment Lawyers.