Australia: When boardroom bullying leads to a Fair Work Commission claim

Last Updated: 27 October 2017
Article by Emily Dempster

Directors may be surprised to discover that they can now be held accountable for their behaviour in the boardroom.

In brief: Board meetings are a forum where vigorous and difficult discussions are the norm. As such, directors may be surprised to discover that they can be held accountable for their behaviour in the boardroom in, of all places, the Fair Work Commission (Commission). This is due to a recent decision of the Commission which demonstrated that the anti-bullying laws in the Fair Work Act 2009 (Cth) (FW Act) may apply to company directors. This means that company directors could potentially apply to the Commission for a stop bullying order which would protect them from being bullied.

What you need to know

  • Pursuant to the FW Act, a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for a stop bullying order.
  • Despite not being conventionally viewed as workers, directors may be able to make bullying claims in the Commission.
  • Companies can take steps to mitigate the risks of directors making bullying claims by conducting training for board members on the effect and operation of workplace bullying laws, and ensuring that there are rules and/or policies in place in respect of the conduct of board meetings.

The Facts

In Trevor Yawirki Adamson [2017] FWC 1976 (Adamson Case), Mr Adamson made an application to the Commission for a stop bullying order. At the time of making the application, Mr Adamson was the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY). Mr Adamson was not an employee of APY. His application named two persons: the Deputy Chairperson of the Executive Board and the General Manager.

Mr Adamson made a broad range of allegations in his application regarding the behaviour of the Deputy Chairperson and the General Manager, including that they:

  • refused to deal with him and disrespected his wishes;
  • interfered with his conduct of meetings of the Executive Board and prevented him from exercising his powers;
  • orchestrated events to prevent a quorum at meetings of the Executive Board;
  • prevented him from accessing meeting minutes of the Executive Board; and
  • 'defamed' him and other members of the Executive Board.

From their end, the Deputy Chairperson and the General Manager denied the allegations regarding their behaviour. They argued that the Commission did not have jurisdiction in respect of Mr Adamson's application as he was not a 'worker' and the conduct complained of did not occur in the context of Mr Adamson being 'at work'.

Was the Chairperson a worker?

The anti-bullying provisions of the FW Act provide that 'worker' has the same meaning as in the Work Health Safety Act 2011 (Cth) (WHS Act). The WHS Act broadly defines a 'worker' as a person who 'carries out any work in any capacity for a person conducting a business or undertaking'. This could include, but is not limited to, a range of persons including an employee, contractor (or employee of the contractor), employee of a labour hire company, student gaining work experience, or a volunteer (except for a person volunteering with an association that has no employees).

As the definition of 'worker' in the WHS Act is so broad, the fundamental question in the Adamson Case was whether Mr Adamson's responsibilities as Chairperson of the Executive Board equated to him 'carrying out work in any capacity' for APY.

Mr Adamson was paid an allowance for the Chairperson position and his responsibilities included calling and chairing Executive Board meetings, attending Board and other APY meetings, participating in the decision making and consultative processes of the Board, and representing the Board to the community and in other forums. Ultimately, the Commission determined that Mr Adamson's responsibilities represented 'work' and that he was also, 'carrying out the work' for APY.

As such, whilst Mr Adamson was not a 'worker' in the traditional sense, Commissioner Hampton determined that he was a 'worker' for the purposes of the anti-bullying laws in the FW Act.

Did the alleged conduct occur whilst the Chairperson was at work?

The anti-bullying provisions in the FW Act provide that the bullying conduct must take place whilst the worker is 'at work'.

In determining whether Mr Adamson was 'at work' whilst the bullying conduct took place, Commissioner Hampton referred to a 2014 decision1 in which a Full Bench of the Commission made the following comments:

  • the alleged bullies do not need to be 'workers', they could be customers of the business or undertaking in which the applicant works;
  • the alleged bullies do not need to be 'at work' at the time that they engage in the alleged bullying behaviour;
  • 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 the day;
  • a worker will be 'at work' when he or she is engaged in an activity which is authorised or permitted by their employer or principal (such as being on a meal break or accessing social media whilst performing work).

Ultimately, Commissioner Hampton determined that the alleged bullying conduct (if it occurred) took place whist Mr Adamson was 'at work' in his capacity as Chairperson. As such, on a preliminary basis, Commissioner Hampton determined that Mr Adamson was covered by the FW Act anti-bullying laws.

Ultimately, Mr Adamson's application was dismissed because he was not re-elected to the Executive Board and, therefore, there was no future risk of bullying.2

Stop bullying orders and boards

The Adamson decision demonstrates that the FW Act anti-bullying laws may apply to company directors.

As such, if one or more directors behave unreasonably towards another director and that behaviour causes a risk to the health and safety of that director, then there is a risk that the affected director could apply to the Commission for a stop bullying order.

Previous stop bullying orders that have been issued by the Commission have included:

  • directions to the individuals named in the application to the effect that they not make contact with each other, only make contact via email during specified times and/or not attend certain premises;
  • directions to the employer company to provide anti-bullying training, conduct training for all workers on appropriate standards of behaviour and/or actively monitor the behaviours of the workers.

Clearly, given the form of order that can be made, the granting of a stop bullying order could severely compromise the operation of the board.

Mitigating the risks

Companies can take steps to mitigate the risks of directors making bullying claims by:

  • conducting training for board members on appropriate standards of behaviour and the effect and operation of workplace bullying laws;
  • ensuring that there are rules and/or policies in place in respect of the conduct of board meetings; and
  • providing training to the senior board members, including in relation to the conduct of board meetings, and the necessity of the senior board members to monitor the behaviours of the directors and, if necessary, address any inappropriate behaviour.

Footnotes

1 Bowker and others v DP World Melbourne Limited T/A DP World and Others [2014] FWC 8828

2 The Commission can only make a stop-bullying order if there is a risk that the worker will continue to be bullied at work.

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.

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