The Fair Work Commission has recently refused to make an anti-bullying order despite finding that bullying had occurred, because the employer had already changed the role of the perpetrator to limit contact between the parties.
In the case of Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen  FWC 3136, the Fair Work Commission (FWC) refused to make an order to stop bullying.
Mr Lacey and Mr Kandelaars were both employed by Murrays as bus drivers. They claimed their manager, Mr Cullen, was engaging in unreasonable behaviour towards them that amounted to bullying.
Mr Kandelaars claimed Mr Cullen was angry, abrupt and aggressive towards him on a number of occasions and humiliated him in front of other employees. On occasions, Mr Cullen would cause Mr Kandelaars to become stressed prior to driving the coach. Mr Kandelaars believed this was not acceptable because he was responsible for the health and safety of passenger on his bus.
As a result of Mr Cullen’s behaviour, Mr Kandelaars stated he did not feel able to return to work because he was fearful of Mr Cullen. Medical evidence demonstrated Mr Kandelaars had suffered stress and anxiety following the alleged incidents.
Another employee, Mr Lacey, similarly said Mr Cullen would confront him and this made him stressed prior to driving and concerned about his future employment as he was on probation.
A number of other drivers also made allegations that they had been sworn at by Mr Cullen or been subject to inappropriate behaviour.
Subsequent to the allegations of bullying, Murrays changed the role of Mr Cullen so that he was no longer responsible for the supervision, assessment or disciplining of drivers, or investigating incidents.
Despite this, the drivers who gave evidence reported they continued to feel at risk at work.
Murrays argued that because the office was quite small, it would be impossible for Mr Cullen to avoid the other drivers. Further, Murrays claimed that Mr Kandelaars was not at on-going risk because he refused to return to work unless an order preventing contact between Mr Cullen and himself was granted.
The FWC found Mr Cullen’s behaviour was akin to treating the drivers “like naughty school children”, and found there was sufficient evidence to demonstrate that Mr Cullen had subjected Mr Kandelaars and Mr Lacey to repeated unreasonable behaviour, which constituted bullying.
However, the FWC did not believe an order to prevent contact was practical, nor would it be practical to require another person to be present whenever Mr Cullen spoke to the drivers. The FWC believed Mr Cullen’s new role in combination with a finding that bullying had occurred was enough to protect Mr Lacey and Mr Kandelaars from further bullying.
As such, no orders were made.
This case demonstrates the importance of employers recognising when bullying has occured in the workplace and taking reasonable steps to reduce the risk of further bullying. This may include changing the role of an employee to limit contact between the perpetrator and the person being bullied. If an employer takes steps to ensure that employees are not further subject to bullying, then the Fair Work Commission is unlikely to step in and make orders requiring the employer and its employees to comply with them.