"That’s not bullying": Fair Work Commission clarifies key aspects of new workplace bullying laws - Health & Safety

In Application by Ms SB [2014] FWC 2104 (12 May 2014), the Fair Work Commission (FWC) has provided its first detailed insights into the types of conduct that will – and won't – constitute bullying under Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act).

The decision by Commissioner Hampton, the FWC's anti-bullying Panel Head, also explores the concept of "reasonable management action" in the context of alleged bullying.

In this In Brief, we examine the FWC's decision and its implications for employers seeking to manage the risk of claims being brought under the FWC's anti-bullying jurisdiction.

BACKGROUND

Ms SB (SB)¹, is a Delivery Support Team Leader within the organisation that employs her, team of Delivery Support Officers (DSOs). SB made an application for an order to stop bullying under Part 6-4B of the FW Act.

Under Section 789FC, a worker who "reasonably believes" that they have been bullied at work can apply to the FWC for an order to stop the bullying. Section 789FD(1) states that a worker is bullied at work when:

another individual or group of individuals "repeatedly behaves unreasonably towards the worker"; and
"that behaviour creates a risk to health and safety."

Section 789FD(2) provides that the above definition of bullying does not include "reasonable management action carried out in a reasonable manner".

Alleged conduct in SB's application

SB's application for orders under Part 6-4 related to alleged unreasonable behaviour by two DSOs, referred to as "CC" and "NP"; and the conduct of her employer in responding to this behaviour.

The matter was complicated by the fact that NP and CC themselves made complaints about SB to their employer:

In August 2013, against SB that was ultimately found to be unsubstantiated following an investigation by the employer.
CC also made bullying allegations against SB to the employer, which occurred just prior to the lodgement of SB's bullying claim in the FWC. This time, an investigation conducted on the employer's behalf found that the claims against SB were partly justified.

In addition to the bullying complaints by NP and CC, the unreasonable conduct alleged by SB included the following:

The employer's acceptance and investigation of NP and CC's complaints against SB.
When the claim by NP was found to be unsubstantiated, the employer did not take any steps to prevent similar unfounded claims being lodged in the future.
SB was the target of ongoing malicious rumours in the workplace, was harassed on a daily basis by CC and received no support from her employer.
SB was humiliated as a consequence of rumours and gossip as the employer did not notify employees about the outcomes of the complaints, which were favourable to SB.

SB sought orders directed at stopping the alleged bullying conduct by CC; compliance by the employer and others with applicable workplace bullying policies; and the monitoring of workplace behaviour by the employer.

WHAT CONDUCT AMOUNTS TO BULLYING UNDER THE FW ACT AND WHAT WILL CONSTITUTE REASONABLE MANAGEMENT ACTION?

The definition of bullying

Before deciding on the merits of the case before him, Commissioner Hampton considered the kinds of conduct that will amount to "bullying" within the definition set out in section 789DF(1) of the FW Act:

In relation to the concept of individuals repeatedly behaving unreasonably, there is no specific number of incidents required – as long as there was more than one occurrence of unreasonable behaviour. The same specific behaviour does not have to repeated; there could be a range of behaviours over time.
The assessment of whether behaviour is unreasonable is objective, having regard to all the relevant circumstances applying at the time.
Because the unreasonable behaviour must also create a risk to health and safety, there must be a causal link between the behaviour and the risk to health and safety. Although the behaviour does not have to be the only cause, it must be a substantial cause of the risk.
A risk to health and safety is not confined to actual danger, but is satisfied by the mere possibility of danger to health and safety. However, the risk must be real and not simply conceptual.

Reasonable management action

Commissioner Hampton also considered the meaning of "reasonable management action" under section 789FD(2):

This provision is not so much an "exclusion" from the definition of bullying, "but a qualification which reinforces that bullying conduct must of itself be unreasonable".
"Determining whether management action is reasonable requires an objective assessment in the context of the circumstances and knowledge of those involved at the time."
The consequences that flowed from the management action taken, and the emotional state and psychological health of the worker involved, may also be relevant.
The test is whether management action was reasonable, not whether it could have been undertaken in a manner that was more reasonable; nor whether the applicant perceived it to be unreasonable.
Management actions do not need to be perfect or ideal to be considered reasonable. However, they do need to be lawful and rational.
A course of action may be reasonable, even if particular steps are not.

WAS SB "BULLIED AT WORK"?

Commissioner Hampton accepted that the making of "vexatious allegations", spreading rude or inaccurate rumours, and conducting an investigation in a grossly unfair manner could be considered unreasonable conduct and constitute bullying under Part 6-4B if the conduct occurred repeatedly. So, too, could a manager be subject to bullying by employees that he/she supervises.

However, the Commissioner made the following findings in SB's case:

There was insufficient evidence "to provide a basis for findings that an individual or group of individuals have repeatedly behaved unreasonably towards the applicant so as to create a risk to health and safety."
While some of the behaviour bordered upon unreasonable, Commissioner Hampton was not satisfied that "the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to [SB's] health and safety."
"The receipt of the two complaints by management and the conduct of investigations in response were not unreasonable. Indeed, that course of action was the only reasonable and prudent response." Having the investigations conducted by an external law firm was also not unreasonable.
In response to SB's argument that her employer failed to take appropriate action to support her after the initial complaint by NP was investigated and found to be unsubstantiated – the employer did make some efforts to offer support, and SB actually "did not see the value of that support at the time and communicated this."

In conclusion, Commissioner Hampton determined that SB had not been bullied at work within section 789FD, and therefore there was no basis for the making of any orders.

KEY POINTS FOR EMPLOYERS

The decision in Application by SB is important, as it is the first substantive consideration by the FWC of an application for anti-bullying orders under Part 6-4B of the FW Act.² Previous decisions have only considered jurisdictional/procedural aspects of the FWC's anti-bullying jurisdiction.³
In light of the decision, employers should revisit their bullying guidelines, policies and procedures. Although management actions do not have to be perfect to be considered reasonable, bullying complaints should be managed and investigated in a way that is thorough, transparent and responsive to any concerns that have been raised.
Where a bullying issue arises in the workplace, and is resolved (whether through internal processes, or ultimately in the FWC) – don't stop there! Commissioner Hampton pointed to the need for the parties in this case to deal with problems in their ongoing relationship and "some cultural, communication and management issues in this workplace that should be addressed by senior management".

Footnotes

¹ Due to the nature of the application, and the fact that it affected ongoing employment relationships, the names of the individuals involved and the workplace were anonymised.
² Apart from the anti-bullying order made by consent between the parties in Applicant v Respondent, PR548852, 21 March 2014.
³ See the two decisions in Application by McInnes [2014] FWCFB 1440 (finding that conduct prior to 1 January 2014 is relevant to the FWC's determination of bullying claims: Corrs In Brief and [2014] FWC 1395 (finding that as the employer was not a constitutional corporation, the FWC had no jurisdiction to hear the case). See also Balthazar v McGuire; Department of Human Services (Commonwealth) [2014] FWC 2076 (no jurisdiction because carer's payment recipient was not a "worker" covered by the anti-bullying laws within section 789FC of the FW Act).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


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