More than six months on from the introduction of the new anti-bullying laws, the Fair Work Commission (FWC) has handed down a few decisions on anti-bullying applications. We take a look at the new laws to consider how the case law builds on the legislation, and to re-evaluate the risks that the new jurisdiction poses to employers.
The risks to employers
The good news for employers is that the FWC has received only 151 applications in the quarter ending March 2014. This is significantly less than the 875 applications per quarter that the FWC anticipated it would receive.
The bad news is that the anti-bullying jurisdiction remains a high risk for employers, as it is now clear that:
- the FWC can make a wide range of orders against them
- the Commission takes a strict approach towards "exceptional circumstances" meriting a costs order, making it difficult for employers to recoup costs from failed applications, and
- the majority (72%) of bullying applications received by the FWC relate to the actions of managers.
Orders to stop bullying
The FWC can make "any order it considers appropriate" to stop bullying. Orders made against employers are likely to include orders that the employer institutes, or amends an existing, anti-bullying policy, or that the employer provide training, mentoring, counselling or other support to workers.
In Applicant v Respondent (PR548852), the FWC handed down its first orders to stop bullying. These orders were made against the complainant and the perpetrator worker, rather than the employer. However, the orders were quite prescriptive, requiring that:
- the applicant should not arrive at work before 8:15 am
- the perpetrator should not be at work after 8:00 am, and
- the perpetrator shall not send emails or texts to the applicant, except in an emergency.
Prescriptive orders against workers are likely to impact the employer, as they require a very high degree of HR support and workplace planning. For example, the above orders will likely affect how an employer prepares rosters and determines an employee's work location and projects.
Reasonable management action
The anti-bullying provisions in the Fair Work Act do not apply to "reasonable" management action. The FWC has made two decisions that consider what reasonable management action means in practice.
A manager, Ms SB, claimed that two subordinates engaged in a range of bullying conduct, including harassing her daily, spreading malicious rumours and making spurious internal bullying complaints against her.
Ms SB also claimed her employer bullied her by formally investigating the bullying complaints made by her subordinates (which she claimed were unfounded), and failing to provide her with training and support immediately after resolving the first internal complaint against her. Ms SB was offered access to an employee assistance program, mentoring and management training following resolution of the first internal complaint against her. However she didn't take this up. Nevertheless, Ms SB claimed that her employer should still have ensured that these support measures were provided.
In his decision, Commissioner Hampton found that the relevant consideration is whether the management action was reasonable, and not whether it could have been undertaken in a manner that was "more reasonable" or "more acceptable". This means that the management action does not need to be "perfect" or "ideal" to be considered reasonable. In the circumstances, the only "reasonable and prudent response" was for the employer to investigate these complaints.
As a part of his performance appraisal, Mr Sun completed a self-review against his performance plan. Mr Sun's self-review was queried by his supervisor and he received a "meets requirements" rating, which resulted in a bonus payment less than he was expecting. After reading an email outlining his performance appraisal result, Mr Sun collapsed and was taken to hospital.
Mr Sun made two internal complaints. First, he complained that his manager downgraded his result in his performance appraisal. This was found to be unsubstantiated. He then complained that verbal coaching about his performance on a project was beyond the scope of the matters his manager was entitled to coach him on, as the project did not fall within Mr Sun's position description.
In his decision, Commissioner Cloghan considered the explanatory memorandum relating to the anti-bullying provisions, which notes that persons conducting a business:
"Need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker's performance."
In the circumstances, the conduct of Mr Sun's managers amounted to reasonable management action.
What does this mean for employers?
Employers can take comfort from the fact that in both decisions, the management action undertaken was found to be reasonable. From Commissioner Hampton's comments in Ms SB, it appears that management action will be interpreted in a practical manner. Employers are not required to take the ideal or best course of action; the action taken need only be reasonable in the circumstances.
The cases also make clear that management action extends beyond direct performance management to broader management functions, including investigating complaints and provision of resources and support to employees. This effectively expands the range of employer actions that may be the subject of a complaint.
When determining the management action to be taken in any situation, employers should also be wary of employee's personal circumstances, including their emotional state and mental health.
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.