Resized Judge And Gavle

Deputy President Slams the Abuse of Anti-Bullying Provisions

Deputy President Sams of the Fair Work Commission (FWC) has dismissed a casino worker’s bullying application, warning it is not acceptable to use such claims as “a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes”.

Background and Outcome

An employee at Star City Casino claimed he was bullied by management after he breached the Casino’s mobile phone policy. He filed a stop bullying application with the FWC, claiming that he had been physically abused. He further claimed that the written warning he received was unjustified and also amounted to bullying.

He also added that he was bullied by being given a final warning for spitting into a rubbish bin. He sought interim orders that his employment not be terminated while the bullying claim was being determined.

In its defence, Star City submitted that isolated incidents cannot constitute bullying, and this was accepted by the FWC. It was also considered that the Star City’s actions were reasonable because the employee admitted to using his phone and spitting; that he was given a proper opportunity to respond; and admitted that he was aware of the company’s mobile phone policy. It was immaterial that Star City did not have an explicit ‘no spitting in public’ policy as this should have been obvious.

The FWC considered that Star City’s actions were said to fall under the definition of a “reasonable management action carried out in a reasonable manner,” which is protected from the definition of bullying in s789FD(2) of the Fair Work Act 2009 (Cth).

The Deputy President found much of the Applicant’s “evidence to be fanciful or implausible and for the most part, entirely made up” and also noted that the Applicant had made no complaint or grievance with the Casino and had produced no medical evidence that he was harmed by the conduct.

DP Sams Comments about the Anti-bullying jurisdiction

Deputy President Sams made further comments about the commission’s anti-bullying jurisdiction, saying that it should not be used “to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying.”

He stated further that: “For some time, I have been troubled that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose for which it was never intended by the legislature. This has been a strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance. This case is an obvious example of this improper purpose.”

He said that such applications undermined the work of the FWC and could form an abuse of process.

Tanka Jang Karki [2019] FWC 3147