For the Fair Work Commission (FWC) to make anti-bullying orders, the conduct must meet the test of being "repeated unreasonable behaviour while at work". So how do several incidents by co-workers fail the "repeated" test? A full bench of the FWC recently upheld the decision of Commissioner Roe in Hammon v Metricon Homes Pty Ltd t/as Metricon Homes not to make anti-bullying orders because the conduct, although by a group of workers, was not repeated.
Elements applicant must establish to obtain Stop Bullying Orders
To recap, to succeed in a stop bullying application, an applicant must establish that:
- He/she was subject to unreasonable behaviour;
- That the behaviour was repeated;
- That he/she was subject to the repeated unreasonable behaviour while he/she was at work;
- That the behaviour is not reasonable management action carried out in a reasonable manner;
- That the behaviour created a risk to health and safety; and
- If the orders are not made there is a risk that she/he will coninue to be bullied at work.
The interesting point in this case was that the alleged bullying by a group of workers consisted of a number of incidents, however the Commissioner held that the conduct was not repeated and the co-workers were not acting together.
In his application to the FWC under the anti-bullying provisions of the Fair Work Act, the building site manager made numerous allegations of bullying based on a number of incidents of alleged unreasonable behaviour by another employee. The applicant also alleged that other managers had been complicit in and/or participated in the behaviour. The applicant made several allegations of major concern including: allegations about his pay; that he was required to work on an excessive number of sites and the affect this had on his performance results and his salary; that he was not provided with enough training and support yet he was given low level jobs during training.
The applicant also made the following 4 minor incident allegations:
- A co-worker called him "a lackey";
- In the first fortnight of his training as a site manager there was a look alike board in the office. A picture of the applicant as a dwarf was placed on that board along with pictures attributed to other employees. The applicant alleged one of the co-workers failed to act to remove a look alike board;
- Another co-worker suggested in an email that the applicant's pay be delayed to show him what it is like for building contractors not to get paid because of the Applicant's failure to complete relevant paperwork;
- At an end of year function a co- worker challenged the applicant to an arm wrestle. The applicant complained and management failed to pursue this matter after finding it was substantiated.
Commissioner Roe heard evidence on the major issues and found that the major issues did not constitute unreasonable behaviour. Having made the finding that the behaviour was not unreasonable no orders were made.
When the application to stop bullying was first heard in the FWC, the Commissioner found that 4 minor instances of unreasonable behaviour directed at the applicant did occur at work and were not reasonable management action carried out in a reasonable manner. However, although the incidents indicated some short comings in the employer's practices, Commissioner Roe found there was no repetition so no basis for a bullying finding.
Each of the co-workers was responsible for one separate incident. Commissioner Roe was not satisfied that the co-workers were acting together to harm the applicant.
The Full Bench of the FWC upheld Commissioner Roe's decision and the appeal was dismissed.
The case highlights that where more than one worker is alleged to engage in bullying conduct, the FWC needs to be satisfied they are acting together repeatedly if it is going to make a stop bullying order.
Actions to manage workplace bullying
Workplace bullying is best dealt with by taking steps to prevent it from occurring and responding quickly if it does occur. The actions to manage workplace bullying may vary depending on the situation, the number of parties involved and the size and structure of the business or undertaking.
Manage the Risk of workplace bullying by:
- Implement control measures;
- Set the standard of workplace behaviour through a code of conduct or workplace bullying policy;
- Have a grievance procedure;
- Hold regular and ongoing training of officers, managers and workers on workplace bullying and the serious consequences;
- Monitor and review the effectiveness of the control measures;
- Respond to workplace bullying – promptly, fairly and as per your process.
- When in doubt seek advice.
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.