On 12 May, Commissioner Hampton of the Fair Work Commission
delivered judgment in the first contested bullying case to reach a
final decision in the FWC.
The decision does not name the parties, but the situation
described is one that many involved in human resources issues can
relate to. It also gives some indications of how bullying matters
are likely to run in the future, and in particular how the FWC is
likely to weigh up evidence in such a matter.
In this case, a restructure had merged 2 teams at different
locations, and had appointed the complainant, SB, as team leader of
the merged team. She encountered resistance from team members who
were not happy to embrace the changes introduced by the business.
SB did not receive support from management to the extent that she
felt was appropriate.
In the context of tension between SB and her team, in August
2013 an employee made an internal bullying complaint about SB's
behaviour. This was investigated by the employer, and dismissed.
Subsequently, another employee made a complaint about bullying by
SB, which was partly upheld and partly dismissed, after an external
investigation. It was after this that SB made a bullying complaint
to the Fair Work Commission, alleging bullying by her subordinates,
and bullying by management by way of lack of support, including
receiving the bullying complaints, the investigations and not
sufficiently publicising her exoneration from the first complaint,
and the dismissal of another complaint against her about conduct at
the Christmas party.
Commissioner Hampton observed that much of the evidence
consisted of generalities rather than detail, and involved
"potentially inflated notions" of the significance of
various instances of conduct. One of the witnesses for the team
leader had provided a statement, but was unwilling to provide
details, which the Commissioner noted was perhaps understandable
because of ongoing working and reporting relationships, but meant
that there was a substantial gap in the evidence.
The Commissioner ultimately found that no bullying behaviour was
proven. There was a lack of evidence of repeated conduct
or of a risk to health or safety or of the likelihood
of continuation of the conduct complained of. The conduct
alleged also fell short of being unreasonable conduct.
For example, while SB was not happy about the investigations,
the Commissioner noted that the employer had an obligation to
investigate complaints of bullying, and that it was reasonable to
do so by way of an external investigation. It was also reasonable
of the employer not to make a particularly prominent publication of
the outcome of the first bullying complaint the Christmas party
complaint, as that might well have given extra prominence to the
original allegations, against SB's interests. Dealing with
unfounded complaints might be unreasonable behaviour by the
employer, but none of the instances in this case was sufficiently
clear cut to say at the outset "This is unfounded".
Inflated ideas about what conduct might count as
"bullying", whether for the purpose of an FWC complaint,
or generally, are very common, and the FWC bullying jurisdiction
will fulfil a useful function if it helps clarify thinking about
what may or may not amount to bullying. This decision indicates
that cogent evidence will be required before the Commission it is
satisfied about behaviour being unreasonable, likely to continue
and posing a risk to health and safety, all matters which are
necessary before a finding of bullying can be made.
Evidence being incomplete because potential witnesses do not
wish to become involved has always seemed likely to be a problem in
the bullying jurisdiction, which is predicated on employment being
In this case, the Commissioner concluded by suggesting the
employer pay attention to some matters in relation to future
handling of the issues, in attempt to assist in dealing with issues
which showed every sign of becoming chronic, and which had already
resulted in staff turnover and stress-related workers compensation
This case clarifies what is likely to make headway in the FWC
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).