Australia: One year on: the Fair Work Commission's bullying jurisdiction, key cases and lessons

Clayton Utz Insights
Last Updated: 17 May 2015
Article by Amy Granger

Key Points:

The Fair Work Commission's treatment of bullying cases emphasises good policies and proactive management.

Over a year has passed since the Fair Work Commission got the power under the Fair Work Act 2009 (Cth) to make a "stop bullying order" when a worker has been bullied at work, unless the alleged bullying behaviour is "reasonable management action" carried out in a reasonable manner.

Despite the laws being welcomed as providing workers with a clear legislative recourse against workplace bullying, they have been utilised at a much lower rate than expected, with only one "stop bullying" order made by the Fair Work Commission to date1.

The Commission has however issued some key decisions which provide us with clarity and a better understanding of the scope of its ability to address bullying in the workplace.

When will the Fair Work Commission have the power to make a "stop-bullying" order?

The Fair Work Commission has made clear that it will not have the power to make a stop bullying order where there is no future risk of bullying at work for the worker. In Shaw v ANZ [2014] FWC 3408, it dismissed Mr Shaw's anti-bullying application after his employment was terminated, on the basis that there was no risk the alleged bullying behaviour would continue.

However, it has also signalled that it may put an anti-bullying application on hold (even if the employee has been dismissed), if there is any chance that the employee may be reinstated, such as through an order for reinstatement as a result of a successful unfair dismissal claim.

The decision to dismiss or delay an anti-bullying application is a matter of judgment for the Commission, made with regard to the statutory directive to deal with anti-bullying matters promptly, and the nature and circumstances of the parties.

What is bullying "at work"?

Bullying must occur "at work" for the Commission to have power to make a "stop-bullying" order. The Full Bench considered the phrase " while the worker is at work", and found that:

  • "the concept of being 'at work' encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer... (such as being on a meal break or accessing social media while performing work)."
  • being "at work" is not limited to the confines of a physical workplace. A worker will be "at work" at any time the worker performs work, regardless of his or her location or the time of day2.

What is "reasonable management action" carried out in a reasonable manner?

"Reasonable management action" will fall outside of the scope of bullying for the purposes of the Fair Work Act. In SB [2014] FWC 2104, Commissioner Hampton stated that this requires an objective assessment of the action in the context of the circumstances and the knowledge of those involved at the time.

For example, it is unlikely that actions such as performance appraisals or meetings to address underperformance which "effectively direct and control the way that work is carried out" will constitute bullying, provided that they are carried out in a reasonable manner. Management actions do not need to be perfect or ideal to be considered reasonable, but they must be lawful and rational. In other words, an employer should be able to justify such action as reasonable and necessary in the circumstances.

In another decision3, Commissioner Cloghan confirmed that any unreasonableness must arise from the management action itself, rather than the worker's perception of the action.

What can the Fair Work Commission order?

The Commission can make any order that it considers appropriate to prevent a worker being bullied at work, other than an order reinstating the worker or requiring a payment.

In March 2014, an employee made an application to the Commission in respect of alleged bullying behaviour at her workplace.4 Senior Deputy President Drake made orders that required that the alleged bully:

  • not have contact with the applicant alone, and not comment on the applicant's clothes or appearance;
  • not send any emails or texts to the applicant, except in an emergency, and not to raise any work issues with the applicant without notifying the COO of the employer, or his subordinate, beforehand; and
  • complete any exercise at the employer's premises before 8.00am, and the applicant was required not to arrive at work before 8.15am.

Subsequently in December 2014, on receipt of a request from the applicant advising that the orders had had a positive effect in resolving the conflict, SDP Drake revoked the orders with a view to the matter being managed at the workplace from then on.5

Best practice for employers

There are a number of steps that employers can take to ensure that they are prepared to adequately address bullying claims in the workplace, and to minimise their exposure to these type of claims:

  • ensure strong workplace conduct policies are in place, regularly audited and tailored to the specific risks which exist in your workplace;
  • select line managers with good interpersonal skills, and provide training to managers in workplace behaviour and conflict;
  • manage workplace behaviours proactively rather than reactively, given the dangers to workers and costs to employers;
  • treat every complaint of bullying behaviour seriously, and act in compliance with investigation policies and procedures in the workplace.

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1 In addition, two orders in respect of alleged bullying behaviour have been made by consent in Applicant v Company A Pty Ltd; Company B Pty Ltd; and Third Respondent (AB2014/60) and Applicant v Respondent (AB2014/1052).
2Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, Victoria Branch and Others [2014] FWCFB 9227.
3 Sun [2014] FWC 3839.
4 Applicant v Respondent (unreported, Fair Work Commission, SDP Drake, 10 September 2014).
5 Applicant [2014] FWC 9184.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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