Can a bullying claim continue after a worker has been sacked?

View All Articles

In a recent case, the Fair Work Commission decided that although sacked workers’ anti-bullying claims are likely to fail, it may be appropriate to hold such claims “in abeyance” if the worker is “actively” contesting their dismissal.

As with all anti-bullying claims, the details of the case including the names of the employer, alleged bully or bullied employees have not been identified by the Fair Work Commission. However, some relevant facts about this case have been made public.

Background

The case involved a former restaurant worker who made a general protections application in the Fair Work Commission. The worker also lodged his anti-bullying claim, three days after receiving his employer’s termination letter, but 11 days before his dismissal took effect.

The general protections application did not resolve at a conference before the Fair Work Commission and after the conference, the worker did not take any steps to progress the general protections application.

The employer asked the Fair Work Commission to throw out the bullying claim, arguing that:

  1. the worker was no longer an employee;
  2. the worker hadn’t raised the allegations before being notified of his sacking; and
  3. there was no risk of future bullying because the worker was no longer in the workplace.

Decision

The Fair Work Commission dismissed the anti bully application on the basis that it had no reasonable prospects of success because the worker was not “actively contesting the general protections application”.

Furthermore, it was unlikely that the bullying would occur again because the worker would first have to be successful in the claim for general protection from adverse action and then, an order for reinstatement of employment would also have to be made as part of the worker’s compensation.

Please feel free to contact me if you have any questions about anti-bullying claims.

The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, FC Lawyers cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. FC Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. FC Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.