The Fair Work Act makes workplace bullying unlawful. If one of your employees reasonably believes they have been bullied at work, they have the right to ask the Fair Work Commission (“Commission”) for an order to stop the bullying. If your employee has exercised this right, you should respond, and engage in the process. The Commission won’t investigate the claims itself – so if you don’t respond, you can lose your opportunity to tell your side of the story. This article explains the four steps involved in responding to a workplace bullying complaint.

1. Respond in Writing to the Workplace Bullying Complaint Using Form 73

After your employee has made the application, the Commission will send you a copy of it. They will also send a copy to anyone who has allegedly engaged in the behaviour and who the employee names in their application.

From the date that the Commission serves you, you have seven calendar days to respond.

To answer the application, you must use Form 73 – “Response from an Employer/Principal to an Application for an Order to Stop Bullying”.

In your reply, you should set out your view of the events described by your employee, and the facts, as you understand them. You also have the opportunity to object to the application, by setting out any relevant reasons why you think the Commission shouldn’t hear or progress the matter.

For example, you can object on the basis that the anti-bullying laws do not apply to the employee. Non-application usually occurs when the employee is not working at a “constitutionally-covered business”. These businesses include sole traders or a State government department.

You can lodge the form in various ways – including on the Commission’s website, by post or in-person at any of the offices (which are in all capital cities).

2. Serve Form 73 to the Other Parties Involved

As part of lodging your response, you will usually have to serve Form 73 (and any supporting documents) on the person (or people) who made the bullying complaint (known as the applicant), as well as any of their legal representatives.

You will also need to serve a copy on anyone named in the application as having bullied the applicant. This notice must also occur within seven calendar days from when the Commission notified you of the workplace bullying complaint.

The Commission has specific rules about how to give a copy of the required documents to the other side. Your options will usually include:

  • Fax;
  • Express or registered post; or
  • Leaving it with the person.

3. Attend the Mediation, Conference or Hearing

The circumstances of each application very much drives the process the Commission adopts. The Commission may choose to mediate the matter, or go straight to the conference or hearing.

The mediation is voluntary, and an independent mediator will oversee the process and try and get you and your employee to work out the allegations on your own.

If the mediation resolves the bullying dispute, the matter will end there. If the dispute remains unresolved, the matter will go to a hearing or a conference.

Any hearing or conference can lead to:

  • The resolution of the bullying claim;
  • The rejection of the application; or
  • Orders to stop the bullying.

The person who hears the application (known as the commission member) can make orders that they consider appropriate to the particular facts of the case.

For example, the Commission could request you to:

  • Review your company’s bullying policy;
  • Stop the bullying behaviour; or
  • Provide extra support and training to your workers.

Ultimately, it is important to note the commission member is not a judge, and the Commission is not a court. As it is a tribunal, it doesn’t have all the powers that a regular court has. There are also restrictions on the types of orders it can make. Importantly, the Commission cannot award compensation to the employee, or make you pay a fine.

4. Fulfil Your Obligations If the Commission Has Made Orders

If the application is listed for a hearing or a conference, and the Commission finds that the bullying claim has been proven (and there is a risk that the bullying will go on), it can order you to stop the bullying.

It is important that you comply with the terms of this order. If you do not, your employee may be able to start proceedings in the Federal Circuit Court or the Federal Court.

Unlike the Commission, the courts have the power to issue civil penalties. If the courts find that you have breached the terms of the Commission’s orders, they can impose a penalty of up to $10,800 on individuals, and up to $54,000 on companies.

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We have experience in bullying applications, and can guide you through every step. If you have any questions, reach out to our employment lawyers. We can help prepare your response, discuss your prospects of success and represent you before the Commission or any court proceedings.

Amritha Thiyagarajan

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