The 1 January 2014 commencement of the anti-bullying regime under Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act) marked the start of a new employee protection. The likely outcomes were uncertain. Would applicants achieve an effective resolution of workplace bullying? Would employers be overwhelmed by unworthy claims? Would the Fair Work Commission (FWC) step enthusiastically into the meeting rooms and production lines of Australian businesses?

While the overall level of bullying claims remains far lower than expected, a series of recent decisions has provided further guidance on how the anti-bullying provisions are being interpreted by the FWC. Previous Corrs In Briefs have provided updates on decisions and other developments over the first 12 months of the anti-bullying regime’s operation.[1] In this In Brief, we provide an overview of the latest cases.

THE RELEVANT STATUTORY PROVISIONS

Under section 789FD(1) of the FW Act, a worker is bullied at work when:

  • another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and
  • “that behaviour creates a risk to health and safety.”

However, reasonable management action carried out in a reasonable manner does not constitute bullying (section 789FD(2)).

The FWC may issue an order to stop bullying under section 789FF(1) where it is satisfied that a worker has been bullied at work, and there is a risk that the bullying will continue.

WHEN IS BULLYING “AT WORK”?

In Bowker and Others v DP World Melbourne, MUA and Others [2014] FWCFB 9227 (19 December 2014), a five-member Full Bench of the FWC sought to determine the limits of the requirement that a worker has been bullied at work before an anti-bullying order may be granted.

The proceedings arose following an application by three employees for anti-bullying orders addressing the conduct of both their employer and the Maritime Union of Australia. The conduct complained of included hostile and insulting Facebook posts, being called a “lagger” and being ostracised in the workplace, as well as phone calls between colleagues and union members. The question whether this conduct was “at work” and could therefore fall within the jurisdiction was dealt with as a preliminary question by the Full Bench.

The FWC found that this expression was intended to confine the operation of the relevant provisions. In the Full Bench’s view, the concept of being at work encompasses both the performance of work (at any time or location) and occasions when the worker is engaged in some other activity which is authorised or permitted by their employer (or in the case of contractors, their principal). In coming to this view, the Full Bench rejected the broader interpretation supported by the employee applicants that the jurisdiction should extend to conduct having any “substantial connection” to work.

The Full Bench also observed that the use of social media to engage in bullying behaviour creates particular challenges, and acknowledged that the approach it had adopted could result in arbitrary outcomes. On the basis of this decision, for example, unreasonable Facebook posts which are viewed by a worker while “at work" may be actionable under the FW Act, but the same posts viewed while not “at work" would not fall within the scope of Part 6-4B.

WHEN DOES A DISMISSAL OVERTAKE THE ABILITY TO PURSUE AN ANTI-BULLYING CLAIM?

In Application for anti-bullying order [2015] FWC562 (11 February 2015), Commissioner Hampton revisited the question whether an anti-bullying claim can proceed in the shadow of termination of employment. In that case, the employee’s claim seeking anti-bullying orders was made after receiving notice of termination from his employer, but before it took effect. The employee had also made a general protections claim contesting the termination.

Similarly to the approach adopted in Shaw v ANZBanking Group Limited; Haines [2014] FWC 3408, the FWC found that no anti-bullying orders could be made if there was no reasonable prospect of the applicant returning as a worker in that workplace. As the applicant in the present case had not progressed his general protections claim, the FWC exercised its discretion to dismiss his application for anti-bullying orders.

WHAT CONDUCT IS REASONABLE IN THE CONTEXT OF PERFORMANCE MANAGEMENT?

The outcome in Mac v Bank of Queensland [2015] FWC 774 (13 February 2015) is likely to be encouraging for HR managers and line managers dealing with underperformance. In these proceedings the FWC dismissed a claim by an in-house lawyer seeking bullying orders against five of her colleagues and their employer, the Bank of Queensland.

After being put on notice of performance concerns regarding her work in the in-house legal team at the Bank, Ms Mac had been placed on a performance improvement plan (PIP) which provided that specified performance deficiencies would be monitored under the program, with the potential for dismissal if the progress was not satisfactory. This action, and steps taken by her supervisors to monitor and implement the PIP, were the focus of her application for anti-bullying orders.

Overall, the FWC held that the decision to place the applicant on a PIP, and the Bank’s implementation of that process, was not unreasonable. In the course of reaching this conclusion, Vice President Hatcher considered a range of issues which provide useful guidance to employers in these types of circumstances, for example:

  • One of the issues the applicant complained of was that, at various stages of the PIP process, she was not made fully aware of the alleged deficiencies in her performance. However, the FWC determined that there had been no failure to properly communicate the relevant criticisms to the employee; rather, the facts showed an inability on her part to accept the validity of any criticism of her performance.
  • The Commission commented that it is not unknown for performance management to be used as a means to achieve and justify a predetermined outcome, and impliedly provided this comment as an example of what might constitute bullying through performance management. However this was not the case here, as it was determined that the Bank was clearly entitled to instigate action (such as the PIP) to achieve an improvement in the applicant’s performance.
  • The FWC observed that the fact that a different or better opinion of the applicant’s work could legitimately have been formed would not be sufficient to show that the decision to introduce the PIP was unreasonable. This is an encouraging sign that the tribunal is not willing to analyse the details of day-to-day performance of employees in assessing these types of complaints.
  • While there was clear evidence that the experience of being subjected to the PIP had a significant and negative impact on the applicant's health, the Commission was simply not satisfied that the actions of the relevant managers were outside acceptable performance management: “What is necessary is for Ms Mac to demonstrate that the decision to introduce the PIP lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances. … [She] has not succeeded in doing this.”[2]
  • Vice President Hatcher also considered whether conduct following a worker's exit from the workplace (in this case, on extended sick leave) can enliven the anti-bullying jurisdiction. The Vice President commented that instances of behaviour, including behaviour involving the parties’ lawyers, after the applicant went off work due to illness were unlikely to be conduct “at work” in the relevant sense.

In passing, Vice President Hatcher provided a rather helpful catalogue of the types of conduct that might constitute bullying. These include: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging up, isolation, freezing out, ostracism, innuendo, rumour mongering, disrespect, mobbing, mocking, victim blaming and discrimination. However, the applicant in this case had not alleged any of these kinds of behaviour against her colleagues.

WHEN WILL MANAGEMENT ACTION BE CONSIDERED UNREASONABLE?

In James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2015] FWC 1131 (17 February 2015), the FWC dealt with a jurisdictional objection made by the employer on the basis that the conduct complained of was reasonable management action, and therefore could not be the subject of an anti-bullying order.

The employee lodged the bullying claim after receiving a letter from the company headed “Disciplinary Process”, which involved a procedure that could lead to termination of employment. The letter referred to a number of alleged shortcomings of the employee, involving efficiency, following direction, attitude and rudeness.

On the evidence provided, the FWC could not find a logical causal link between the disciplinary action and the employee’s conduct, behaviour, or work performance. Commissioner Lewin stated that differences in opinion in relation to the appropriateness of certain work practices “did not reasonably warrant ‘disciplinary action’ as opposed to discussion about appropriate procedures with the employees involved.”[3] For management action to be reasonable, there must be “some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action”.[4]

The FWC therefore found that commencing the disciplinary process against this employee over performance concerns was not reasonable management action within the meaning of the FW Act. However, the FWC is yet to decide the substantive issue as to whether the employee had been bullied at work in this case.

ASSESSMENT AND IMPLICATIONS FOR EMPLOYERS

The decisions discussed in this In Brief demonstrate that the FWC is taking a measured and careful approach to explaining the anti-bullying jurisdiction, and maintains a sharp focus on the real scope and purpose of Part 6-4B of the FW Act.

In addition, the decision in Mac v Bank of Queensland once again confirms that the FWC is reluctant to grant orders for the suppression of the identity of parties involved in applications for anti-bullying orders. The Commission consistently gives priority, instead, to the principle of open justice.

Employers therefore need to keep in mind that anti-bullying claims, and the circumstances that give rise to them, can result in adverse publicity – and considerable scrutiny of management practices in a public forum.

For example, Vice President Hatcher stated that while the Bank’s managers had not behaved unreasonably: “That does not … mean that the relevant conduct was in all respects entirely beyond criticism or constituted the best human resources practice one might expect in a large and sophisticated employer such as BOQ.”[5]

Prevention of bullying claims should be the goal for employers, by taking steps to ensure that:

  • employees and managers are regularly trained on appropriate workplace conduct, harassment and bullying; and
  • applicable policies are kept updated and applied consistently.