Tim Greenall, Special Counsel explores what constitutes workplace bullying under the Fair Work Act 2009 (Cth) along with a recent case example.
In brief: There have been relatively few decided cases on what constitutes workplace bullying under the Fair Work Act 2009 (Cth). This is largely attributable to the fact that the Fair Work Commission's jurisdiction does not provide any compensation for claimants, and orders can only be made where the complainant remains at work.
What you need to know:
For a complainant to obtain an order to stop bullying, he or she must establish that:
- they were subject to unreasonable behaviour;
- the behaviour was repeated;
- they were subject to the repeated unreasonable behaviour while they were at work;
- the behaviour is not reasonable management action carried out in a reasonable manner;
- the behaviour created a risk to health and safety; and
- if the orders are not made, there is a risk that they will continue to be bullied at work.
However, even if the complainant is able to demonstrate all of the above criteria to obtain an order against bullying, the employer may be able to pre-empt the making of a bullying order against another employee by altering the bully's duties. In doing so, he or she is no longer responsible for the supervision of the complainant, and thereby reduces the risk of any further bullying taking place.
Recent case example:
In a recent anti-bullying decision, Darren Lacey and Chris Kandelaars v Murrays Australia Pty Limited; Andrew Cullen 2017 [FWC3136], the Fair Work Commission (FWC) determined that bullying had occurred. Furthermore, the FWC's finding that bullying had occurred combined with the reduced risk due to the employer reducing the bully's role was sufficient to protect the complainants from the risk of further bullying.
At the time the respondent employee, Mr Cullen, was the manager of the bus company, Murrays Australia Pty Ltd. As the manager, he was responsible for the supervision of drivers, investigating incidents, assessing drivers, and disciplining drivers. Mr Cullen was found to have an intimidating manner and micro managed employees on a range of issues including, disciplining employees for not cleaning the bus; personal use of a bus between shifts; for accelerating out of the washer station, and even hiding in the bus whilst an employee left the bus running to pay for petrol and then springing upon the employee. The FWC regarded the last example as totally inappropriate and unreasonable behaviour, and did not consider it the role of management to "teach the employee a lesson". Punishing and humiliating employees in this manner is not considered reasonable management action.
As a result of a series of complaints, Murrays Australia altered Mr Cullen's duties so that he only remained responsible for training drivers and could record breathalyser results from time to time. The employer contended that as a result of this there was no longer any further risk that the complainants would be bullied at work, and that given the size of the workplace and the layout of the office, it was not possible to eliminate all contact between the complainants and the bully.
Commissioner Roe considered whether it was practical for Mr Cullen to be limited to working on clerical duties in a back office or be prohibited from dealing with drivers alone. The Commissioner considered that this was not practical given Mr Cullen's skills and background. Furthermore, it was not a practical or balanced response to order a complete separation between the bully and the complainants, or requiring another person to always be present between the two parties.
The Commissioner was of the view that his finding (that bullying had occurred) combined with the reduced risk due to Mr Cullen's new role would be sufficient to protect the complainants from further bullying. Accordingly, the FWC did not consider that an order was necessary or appropriate under the circumstances to prevent further bullying.
When faced with persistent or serious complaints of bullying by employees, employers are advised to re-assign a manager's duties to avoid further confrontation and conflict between the manager and those employees.
The re-assignment of the manager's role and reducing the interface between the manager and the complainants may be sufficient enough to deal with an application for an anti-bullying order made to the FWC.
Employers are also well advised to have anti-bullying and harassment policies in place and to ensure that such policies are well understood and enforced, as required.
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.