In Mr Andrew Hamer  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.
Mr Hamer was employed by the Australian Taxation Office (“ATO”) in Perth. After making allegations of bullying against three other employees of the Perth office, Mr Hamer made an application under section 789FC of the Fair Work Act 2009 for an order to stop the bullying.
At a conference conducted by the Commission, representatives of the ATO advised that Mr Hamer 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 also agreed to attempt to find a permanent position for Mr Hamer (at the same level) where he would continue to be separated from the three. After successfully finding a position for Mr Hamer, the ATO wrote to the Commission advising that Mr Hamer was to be transferred and that the s 789FC application could therefore be withdrawn. However, Mr Hamer sought determination of the application.
In submissions, Mr Hamer 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. Further, he alleged that the ATO had failed to properly investigate his claims, asserting that they did not comply with policy and apparently sided with the three parties against whom bullying was alleged.
Despite recognising Mr Hamer’s concerns, the Commission was not satisfied there was a risk he would continue to be bullied by the persons named in the Application. In doing so, the Commission noted that a number of measures taken by the ATO significantly reduced the risk of further bullying. These measures included:
- Mr Hamer now working in a different business line that had no crossover with the named person’s business lines;
- Mr Hamer working on a different floor in the office; and
- a provision that teams in other states would interact with Mr Hamer or the named persons if there was any need for the two lines to cross.
Ultimately, although the Commission deemed the ATO’s actions to be acceptable in reducing the risk of future bullying, employers should be careful to ensure that the measures taken in such situations are not perceived as an act of reprisal or victimisation. The reassignment of an employee who has filed a complaint may be viewed as such.
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