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Aged care providers encouraged to be mindful of their anti-bullying policies, procedures and training

Newsletter 15 August 2017

Aged care providers are encouraged to be mindful of their anti-bullying policies and procedures following the Fair Work Commission (FWC) issuing interim consent orders in an anti-bullying application in June 2017. 

The interim consent orders were issued by the FWC in an attempt to stabilise the workplace, the subject of the anti-bullying application, by prohibiting the parties from engaging in certain conduct whilst at work in addition to requiring the employer to identify appropriate workplace anti-bullying training, policies and procedures.    

Background

In May 2017, Mr Ari Kypuros (Applicant) made an anti-bullying application to the FWC alleging that he was bullied at work by his uncle, Mr Costa Kypuros (Defendant), who is a co-owner of Mag Wheel & Tyre Pty Ltd (Company) where the Applicant works. 

The Applicant alleged that the Defendant had engaged in bullying conduct towards him including ridiculing his personal achievements, physical intimidation, insinuating he was a liability to the Company, mentioning he was destined for failure in future professional endeavours, and undermining him in front of other staff and customers. 

The Defendant subsequently raised allegations that the Applicant was physically violent to him on three occasions which the Defendant alleged was supported by CCTV video extracts.

The FWC proceeded to hold a conference in relation to the matter at which time the parties discussed potential measures aimed at stabilising the workplace including certain training to develop policies to deal with workplace bullying at the Company.  However, subsequent to the conference, a further report of bullying was alleged to have occurred between the Applicant and the Defendant.

Interim Orders

By consent of both parties, the FWC ordered that, whilst at work, the parties must not directly communicate with one another by any means or be within 10 metres of each other.  The FWC also ordered that the parties must:

  1. Not cause or permit any person to communicate by any means a message that is, or may reasonably be considered to be, abusive, offensive and / or disparaging of one to the other;
  2. Not make comments to each other or other workers which are abusive, offensive to and / or disparaging of one to the other and / or to other workers; and / or
  3. Avoid any circumstance in which an argument, confrontation or violence may arise while at work.

Further, the Company and its Directors were ordered to submit to the FWC a proposal for workplace bullying training and the implementation of anti-bullying policies and procedures in the workplace.

Workplace Bullying

The Fair Work Act 2009 defines workplace bullying as circumstances in which an individual repeatedly behaves unreasonably towards a worker, whilst the worker is at work, in a manner which creates a risk to health and safety.  The FWC was satisfied that at least some of the conduct complained of by the Applicant could constitute workplace bullying as, in the FWC’s view, some of the conduct appeared to be unreasonable and designed to provoke a reaction. 

Further, the balance of convenience favoured making the interim orders because it appeared that, without the orders, the situation between the parties may escalate further, and there may be ‘significant detrimental effects upon the health’ of parties involved in the dispute or others in the workplace.  The FWC also considered the impact the behaviour was having on other persons in the workplace who either had experienced the negative conduct or could be drawn into the dispute in the future.

The FWC did however note that interim orders in anti-bullying applications should not be issued lightly and that direct intervention by the FWC at such an early stage should be exercised with considerable caution.  In an attempt to stabilise the workplace, and given the interim orders were made by consent, the FWC considered them appropriate in these circumstances.  

How will this impact aged care providers?

This is not the first occasion in 2017 that the FWC has resolved to issue interim orders in an anti-bullying application.  In the matter of Lynette Bayly [2017], the FWC held that the balance of convenience favoured the discretion to make interim orders which prohibited the employer from taking any steps to finalise an investigation in relation to the employee prior to the anti-bullying application being heard, prohibited the employer from imposing any disciplinary action on the employee and / or terminating the employee’s employment.

It is a timely reminder for aged-care providers to be mindful of the FWC’s ability to order interim orders in anti-bullying applications which not only prohibit the conduct of the individuals the subject of the application but also allow the directors of a company to be ordered to take actions to ensure workplace bullying is addressed.  As such, aged care providers should ensure they have current anti-bullying policies and procedures in place, and provide appropriate training to their employees in relation to same, in an attempt to adequately address workplace bullying prior to action being taken in the FWC.


Dominique Egan, Partner
Sydney

Patricia Marinovic, Associate
Sydney

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Newsletter 15 August 2017
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