The new anti-bullying laws and reasonable management action
The new anti-bullying jurisdiction of the Fair Work Commission has been operating since 1 January 2014. While the new laws have not triggered the avalanche of claims anticipated (which is probably due to the inability of the Fair Work Commission to award compensation), employers will be interested in the first substantive ruling on the merits of an application under the new bullying jurisdiction.
Under the Fair Work Act 2009, bullying occurs when:
- a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
The circumstances in Ms SB1 were somewhat unusual. The applicant was appointed by the employer to manage a new team of delivery support officers with her contract containing a 6-month probationary period. During the probationary period of employment, a bullying complaint was made by one of the company's employees supervised by the applicant which was investigated by the company and found to be unsubstantiated. Another employee, supervised by the applicant, also made a bullying complaint against the applicant. The applicant herself lodged a bullying complaint against that subordinate employee and both competing allegations were investigated by AIG on behalf of the company in the immediate lead up to the hearing of this matter.The AIG investigation found that the allegations against the applicant were justified in part, whereas the complaints by the applicant were not substantiated. The applicant sought orders from the Fair Work Commission directed at stopping the alleged conduct by the employee, compliance by the company and others with the workplace bullying policies operating at the workplace, and the monitoring of workplace behaviour by the company.
The applicant relied either directly or indirectly upon the following elements of alleged unreasonable conduct:
- the making (and receipt by management) of two separate complaints of bullying against her from her subordinates;
- the acceptance of those complaints for investigation by the employer;
- that following the favourable finding in relation to the complaint from one employee, the employer took no adequate action to prevent similar inappropriate conduct (ie., further complaint from being made again);
- being the target of ongoing malicious rumours in the workplace without receiving support from the employer;
- being harassed and badgered on a daily basis by the other employee;
- that employee documenting the applicant's (her manager) conduct; and
- being humiliated as a consequence of rumours and gossip because the employer did not notify employees as to the outcome of the complaints.
The Fair Work Commission dismissed the application. Commissioner Peter Hampton held that the company's receipt and investigation of the two complaints made against the applicant was the only reasonable and prudent response and there was insufficient evidence that the complaints made against her in her role as manager were part of a coordinated campaign against the applicant. In hindsight, the company should have provided more support (including mentoring and management training) following the resolution of the first complaint. However, this failure was not unreasonable, given the manager's initial reluctance to take up the support that was offered.
Commissioner Hampton further held that the "reasonable management action" exclusion was intended to be interpreted widely and to pick up "every day actions to effectively direct and control the way work is carried out."The test is whether the reasonable management action was reasonable, not whether it could have been undertaken in a manner that was "more reasonable" or "more acceptable." In general, this is likely to mean that:
- management actions do not need to be perfect or ideal to be considered reasonable;
- a course of action may still be "reasonable action" even if particular steps are not;
- to be considered reasonable, the action must also be lawful and not be "irrational, absurd or ridiculous";
- any "unreasonableness" must arise from the actual management action in question,rather than the applicant's perception of it;
- consideration may be given as to whether management action involved a significant departure from established policies or procedures and, if so, whether the departure was reasonable in the circumstances;
- the management action must also be carried out in a "reasonable manner" and what is "reasonable" is a question of fact viewed objectively.
Employers are advised to be highly responsive to any bullying allegations and investigate any complaints made in a prompt and transparent manner. Even if the complainant has lodged an application in order to stop bullying in the Fair Work Commission, it is not too late and we recommend that employers still institute their own investigative process pursuant to an anti-bullying policy.
1 fwc 2104 (12 May 2014)
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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.