The Fair Work Commission has found an anti-bullying applicant couldn’t be at risk of future bullying because she had elected to be “treated as being dismissed” in 2012, and even launched an unfair dismissal claim.
Commissioner Peter Hampton found that despite confusion around the worker’s employment status, it was apparent that both her and her employer had “treated the employment contract as being at an end for some years and the litigation between them has been conducted in that light”.
The Commissioner also rejected the worker’s request to refer the matter to SafeWork NSW.
The worker was employed by a NSW online healthcare business as a marketing director in early 2012. In July that year, she was denied access to work emails while on extended sick leave, which led her to believe she had been sacked.
She subsequently launched several legal proceedings including an unfair dismissal claim, a workers’ comp claim, and complaints to the Australian Human Rights Commission.
The worker also sought anti-bullying orders against the healthcare business’s managing director, telling Commissioner Hampton that she hadn’t been dismissed from the business and was at risk of being bullied in future because she was seeking to return to work there.
She argued she was still an employee of the company because, among other things, she wasn’t paid out any termination entitlements, and the company CEO sent her an email in late July 2012 stating she hadn’t been dismissed.
The employer argued that in launching an unfair dismissal proceeding, the worker clearly believed she had been dismissed, and had abandoned her employment in electing to be treated as being dismissed for the purposes of her unfair dismissal claim.
Commissioner Hampton rejected the worker’s application, finding she was no longer an employee of the company, there were no prospects of her returning, and there was no “foreseeable future risk” of her being bullied by the managing director.
“The employment contract concluded in consequence of the election by the [worker] to be treated as being dismissed and the subsequent events and conduct by the parties,” he said.
“I am also not satisfied that any potential return-to-work arrangements, or other circumstances, exist in this matter where there is a foreseeable future risk of the [worker] being subject to bullying conduct as a worker whilst at work by the managing director of the employer.”
Commissioner Hampton noted that the worker had also sought for the FWC to refer the alleged ongoing risk of bullying faced by other workers at the business to SafeWork for investigation.
“[There] is no basis to deal with this under this application,” he said.
In June last year, Commissioner Hampton found the FWC only had jurisdiction to formally refer bullying incidents to the relevant work health and safety regulator if the applicant was at risk of future bullying (see related article).