FWC: Employee Reassignment Sufficient to Reduce Bullying

In Mr Andrew Hamer [2018] FWC 6037, the Fair Work Commission (“the Commission”) found that the reassignment of an employee alleging work place bullying was an acceptable means of reducing the risk of the employee experiencing further bullying.

The Applicant was employed by the Australian Taxation Office (“ATO”) in Perth. The Applicant alleged bullying against three other employees of the Perth office. The Applicant made an application under s 789FC of the Fair Work Act 2009 for an order to stop bullying.

At a conference conducted by the Commission, representatives of the ATO advised that the Applicant had been moved to a temporary position where he was not required to report to or engage with the three people against whom bullying was alleged. The ATO agreed to attempt to find a permanent position for the Applicant (at the same level) where he would continue to be separated from the three. The ATO was successful in finding such a position to transfer the Applicant to and thus wrote to the Commission advising that the s 789FC application could be withdrawn. The Applicant sought a determination on the application.

In submissions, the Applicant expanded upon the type of bullying experienced, claiming it was done for the purpose of having him charged and convicted of a breach of the ATO’s Code of Conduct. The Applicant further alleged that the ATO had not properly investigated his claims by not complying with policy and apparently siding with the named parties. It was the Applicants contention that this had the effect of transforming his personal bullying into a form of institutional bullying. The ATO asserted that it had abided with all normal policies and that it had undertaken measures to ensure the Applicant would not be at risk of experiencing future bullying by the three named parties.

The Commission recognised the Applicants concerns but were not satisfied there was a risk the Applicant would continue to be bullied by the persons named in his Application. The Commission noted a number of the measures the ATO had taken reduced the risk of the Applicant being bullied significantly. These measures included: the Applicant working in a different business line that had no crossover with the named person’s business lines, the Applicant working on a different floor of the office, and a provision that teams in other states would interact with the Applicant or named persons if there was any need for the two lines to cross.

Whilst the actions of the ATO were deemed to be acceptable in reducing the risk of future bullying, employers should be careful with the actions they take to ensure their actions are not perceived as an act of reprisal or victimisation. The reassignment of an employee that has filed a complaint could be seen as such.

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