Australia: Order to stop bullying made by Fair Work Commission: management action not raised in a reasonable way

Last Updated: 18 September 2018
Article by Brian Powles

In a recent case, Application by Ms A [2018] FWC 4147, the Fair Work Commission made an order to stop bullying after it found the communication by a Body Corporate Committee Chairman towards a director of a company engaged to provide management services to a residential complex was unreasonable.

B Pty Ltd was a corporate entity engaged to provide management services to a residential complex. Ms A, and her husband Mr D, were directors of that company. Mr C was the Chairman of the Body Corporate Committee for the residential complex that had engaged B Pty Ltd.

Ms A applied to the Fair Work Commission for an order to stop bullying against Mr C. She claimed he emailed her excessively and continuously, tried to blame her for numerous issues with the complex, and unreasonably interfered in the letting business.

Ms A made 11 allegations against Mr C. In brief, these were:

  1. Mr C said to Ms A in a threatening manner "I will give you a big boom" at a committee meeting;
  2. Mr C sent emails to Ms A that she perceived as insulting and abusive, and made unreasonable requests regarding tasks outside Ms A's responsibilities;
  3. Ms A believed she was entitled to be reimbursed for certain expenses, and she was not reimbursed for these expenses;
  4. Mr C repeatedly questioned her duties and made unreasonable demands. In one email, Mr C wrote "Don't be so stupid [Ms A]. That sort of approval process for this site is crazy and you know it.";
  5. Mr C demanded Ms A perform work outside of her agreement and he stated that the company would be in breach of their agreement if they failed to perform these duties;
  6. Mr C made complaints about the tidiness of the area in front of his door in numerous emails to Ms A, stating the area was common property and must be cleaned daily. Ms A believed the area was not common property;
  7. Mr C repeatedly emailed Ms A regarding the requirements of B Pty Ltd to enforce the Body Corporate's by-laws;
  8. Mr C was inappropriately involved in rental issues and disputes between the tenants and property managers, and assisted tenants in going to the Residential Tenancies Authority;
  9. Mr C required property managers to organise and pay for skilled tradespeople to complete tree maintenance and plumbing works;
  10. Mr C used a storeroom that was exclusively for property managers; and
  11. Mr C responded to Ms A's requests for organising repairs and maintenance in an aggressive and abusive manner.

Decision

The Fair Work Commission found Ms A's performance 'leaves much to be desired'. Further, her response to some incidents was irrational and unreasonable.

Despite this, Mr C was found to have "engaged in a practice of sending emails to Ms A at times which [were] significantly outside the core hours during which the manager [was] required to be contactable". Mr C was also found to have called Ms A a liar and "made comments about her credibility, her ability to perform the work under the contract and her command of English".

While most of the issues raised by Mr C in relation to the alleged bullying conduct was reasonable, the manner in which the issues were articulated, and the frequency of the emails was unreasonable. The Fair Work Commission also believed there was a real risk of the behaviour continuing. For these reasons, the Fair Work Commission found that making an order to stop bullying was appropriate.

The order restricted the timing, subject matter and content of future emails and required Mr C to attempt to contact Ms A by phone prior to emailing her.

Key issues for employers

Employers and managers need to be aware of the difference between reasonable management action taken in a reasonable way, which is legal, and bullying. This case demonstrates that reasonable management action may constitute bullying if the manner, form or frequency it is engaged in is unreasonable. For example, while it was reasonable for Mr C to raise the issues he did, the frequency of the emails he sent, the sometimes sarcastic and derogatory tone of his emails and the timing of the emails (outside reasonable hours) meant the conduct constituted bullying.

Further, despite the technological age we live in, employers and managers should be aware that email is not always an appropriate method for resolving or discussing some issues and disputes. The Fair Work Commission in this case found that Mr C continually sending Ms A emails regarding issues of remuneration was not appropriate, and another process should have been used to resolve the dispute.

In certain circumstances, employers and managers should make an effort to discuss issues and disputes with their employees in person, or if this is not possible, over the phone. Any discussions should be courteous and occur within the normal business hours of the company.

Read the full decision here

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.

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