Monday, 2nd JanBullying Behaviour - Recent Case Law

Bowker and Others v DP World Melbourne Limited T/A DP World and Others [2015] FWC 7312

(Gostencnik DP, 16 November 2015)

Three employees (the applicants) of DP World Melbourne Limited (DP World) employed at its West Swanson terminal each made an application for an order to stop bullying. The application included allegations of conduct engaged in by individuals who are, or were, employees of DP World, members of The Maritime Union of Australia (the MUA) and/or officials of the MUA.

The unreasonable behaviour began after a complaint was made by one of the applicants to DP World concerning derogatory comments made about her by another employee of DP World. Between mid-2013 and July 2015, the applicants raised with DP World in excess of 212 complaints and concerns about conduct by other employees of DP World and representatives of the MUA, which they believed constituted bullying at work.

The applicants alleged in the order of 37 instances of bullying in their application to the Commission.

These included:

• Facebook posts making various unreasonable and insulting allegations and comparisons of two of the applicants
• A code of silence and bullying workplace culture
• Ostracism from the employee and union group
• A lack of support from MUA officials, and
• Employees of DP World and MUA members had made various threats to one of the applicant’s and encouraged other members not to associate with them.

The Commission was satisfied that each applicant was subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals, and that behaviour created a risk to their health and safety. The Commission found that the code of silence, said to be a ‘prevailing culture or paradigm where employees at the WS Terminal will not make complaints to DP World or verify complaints made, for fear of being labelled a “lagger” or being ostracised in the workplace’ still existed, and while steps had been taken by DP World to address the code more could be done.

CF and NW [2015] FWC 5272 (Hampton C, 5 August 2015).

Two applicants made applications for orders to stop bullying. The applicants were, and are, employees of a relatively small real estate business. The applications allege bullying conduct by a Property Manager engaged by the employer, and more recently, employed by a related company. Both applications concerned alleged conduct in the same workplace and the same unreasonable behaviour.

The alleged behaviour by the Property Manager included:

• Belittling conduct
• Swearing
• Yelling and use of otherwise inappropriate language
• Physical intimidation, and
• Threats of violence.

The applicants raised some concerns with employer, these were the subject of an informal investigation and an attempted workplace mediation. With the support of the employer, the Property Manager resigned her employment with the employer but took up an equivalent position with a related company.

At hearing the employer conceded that a finding that bullying conduct had taken place in workplace could be made.

The Commission found that the conduct revealed a workplace culture where unprofessional and unreasonable conduct and interactions had taken place which created a risk to health and safety of a number of workers involved. The Commission further found that the applicants had been bullied at work and was satisfied that there was a risk that the applicants would continue to be bullied at work.