The Fair Work Commission has declined to make stop-bullying orders against an employer that introduced a number of "positive initiatives" to improve its culture after a worker complained of bullying last year.
FW Commissioner Peter Hampton said the family-owned Adelaide restaurant's new comprehensive HR policy and anti-bullying training would "have the effect of reducing whatever risk was otherwise present" to the worker.
In September 2014, the food and beverage attendant applied for stop-bullying orders alleging she was subjected to unreasonable conduct in the workplace such as verbal abuse, name calling and demeaning sarcasm by the head chef.
Following extensive conciliation, the FWC made a number of preliminary recommendations, including that the employer develop a policy establishing appropriate workplace behaviour standards, and the worker recognise the employer's right to expect compliance with its "house rules".
The employer took steps to comply with the recommendations, but the worker lodged a new stop-bullying application against the employer and a number of workers in April this year.
The new application included some of her previous allegations, as well as that she was being excluded from workplace activities and denied information about work and supervision.
The employer claimed the worker hadn't faced repeated unreasonable conduct, some of the alleged bullies no longer worked at the restaurant, and its alleged misconduct was reasonable management action taken in a reasonable manner.
It told the FWC there was no future risk of bullying because of its new workplace policies and procedures.
Commissioner Hampton found the head chef repeatedly treated the worker unreasonably in 2014, and "at the time there were little if any strategies in place to set appropriate behavioural standards and there was no proper mechanism to deal with concerns about such matters".
He also found the employer acted unreasonably in excluding the worker from a staff meeting where the head chef announced his resignation, and failing to provide her with clarity about supervision and management responsibilities.
"On fine balance, I am satisfied that there was sufficient relevant unreasonable behaviour towards the [worker] and/or the group of workers to which she belonged whilst at work to meet the requirements of s789FD of the [Fair Work] Act," Commissioner Hampton said.
But the Commissioner said he needed to hear further submissions from the parties before finally determining the worker's application.
He said he wasn't "presently persuaded" that he should make orders because of the employer's new policies and the fact that most of the more serious unreasonable conduct involved individuals who no longer worked at the restaurant.
Further, the worker – while still an employee of the employer – hadn't worked at the restaurant "for some time" because she was on sick leave and had made a workers' comp claim, he said.
"Most elements of any risk in this case may operate only in circumstances where there is a prospect that she will resume work within that workplace."
