No bullying risk for re-assigned employee No bullying risk for re-assigned employee

No bullying risk for re-assigned employee

12 December 2018 | Employer's Liability

The Fair Work Commission dismissed an application made for an order to stop bullying by finding that relocating an employee to another department in the organisation reduced the risks of any recurrence of alleged bullying.

In Issue

Whether relocating an employee to another department in an organisation reduces the risk of bullying recurrence and is sufficient to dismiss an application for an order to stop bullying.

The Background

Andrew Hamer was employed by the Australian Taxation Office (ATO) in Perth. He alleged bullying against three other employees at his office and made an application to the Fair Work Commission for an Order to Stop Bullying.

Once the application was made, the ATO moved Mr Hamer to a temporary position where he was not required to report to or engage with the three people against whom bullying was alleged in another department. They also agreed to find a permanent position for him, at the same level and remuneration, where he would continue to be separated from these three people on an ongoing basis.

The ATO found this permanent position for Mr Hamer, who agreed to be transferred to another department. As part of his role, Mr Hamer was:

  1. working in a different business line that had no crossover with the named parties;
  2. working on a different floor at the office; and
  3. agreed to a provision that teams in other states would interact with Mr Hamer (or the named persons) if there was any need for the business lines to cross over.

The ATO wrote to the Commission advising that the application could be withdrawn on the basis that there was no risk that the bullying was going to continue.

Mr Hamer still sought a determination on the application that bullying had occurred and sought an order for it to stop.

The Decision at Hearing

The Commission found that the reassignment of the employee alleging workplace bullying was an acceptable means of reducing the risk of the employee experiencing further bullying.

As part of the Commission’s jurisdiction, it must be satisfied that it has the power to make an order to stop bullying. The Commission relevantly needs to consider whether:

  1. The worker has been bullied at worker by an individual or a group of individuals; and
  2. There is a risk that the worker will continue to be bullied at work by the individual or individuals.

While the Commission recognised Mr Hamer’s concerns of future unreasonable behaviour, it was not satisfied there was a risk he would continue to be bullied by the persons named in his application and therefore dismissed the claim.

Implications for you

The decision highlights that taking certain steps to minimise the risks of ongoing bullying could be sufficient to result in a dismissal of a bullying application.

While the actions of the ATO in this case were deemed to be acceptable in reducing the risk of future bullying, employers should be careful with the actions they take in this regard in an effort to ensure their actions are not in breach of other protections. The reassignment of an employee who has filed a complaint (alleging bullying or otherwise) could be found to be adverse action taken by the employer. Therefore, appropriate legal advice should be sought before taking these steps to ensure proper compliance in order to minimise future claims.

Mr Andrew Hamer [2018] FWC 6037 (1 October 2018)

Adi Kedar

Adi Kedar

Solicitor