The Fair Work Commission (Commission) has recently made a number of decisions that outline the approach that it is taking towards the question of whether bullying behaviour is repeated. The decisions indicate that, even where behaviour is quite serious in nature, if it is not repeated, a stop-bullying order will not be made.
A person is defined as having been bullied at work for the purposes of the Fair Work Act 2009 (Cth) (FW Act) if an individual or a group of individuals repeatedly behaves unreasonably towards the person, and where that behaviour creates a risk to health and safety.
One-off unreasonable acts from different employees is not bullying
In Hammon v Metricon Homes1, the Commission made findings that behaviour such as calling someone a “lackey” and likening their appearance to a dwarf, did not constitute bullying because the same employee was not responsible for each incident.
Mr Hammon, a site manager made a stop bullying application against a particular employee, Mr Brand. He also alleged that other managers participated in Mr Brand’s bullying conduct.
The primary allegations made against Mr Brand included that he delayed Mr Hammon’s pay progression, that he denied him opportunities to transfer work locations, and that he gave Mr Hammon an unreasonable amount of work.
Secondary claims of bullying behaviour were made by Mr Hammon, which he said were linked to Mr Brand’s behaviour. These included:
- another employee, Mr Fennessey calling him a “lackey”;
- being challenged to an arm wrestle at a work function by another employee, and the failure of Metricon to take action over it;
- an unknown employee likening his appearance to a dwarf on a look-alike board;
- another employee, Mr Grant sending an email that suggested that Mr Hammon have his pay delayed in retribution for delaying the pay of sub-contractors; and
- Mr Brand trapping him in a ceiling.
After hearing evidence from Mr Hammon, Mr Brand and a number of other Metricon employees, the Commission (though finding Mr Hammon generally “sincere”) held that only four of his allegations were substantiated, namely:
- Being called a “lackey” by Mr Fennessey;
- Mr Brand’s failure to remove the dwarf look-alike photo;
- Mr Grant’s email about delaying Mr Hammon’s pay; and
- Being challenged to an arm wrestle, and Metricon’s failure to take action over it, despite substantiating that it happened after Mr Hammon complained about his treatment at work.
The Commission found that the primary claims against Mr Brand did not constitute unreasonable behaviour.
As a result, the Commission found that a bullying claim could not be made because the behaviour was not repeated. Mr Brand, Mr Grant, Mr Fennessey and the other unknown employees were only responsible for one incident each, and were not acting in concert to cause harm to Mr Hammon.
Death threat an unreasonable act, but not bullying if not repeated
The Commission recently held that death threats and spreading rumours did not constitute bullying behaviour because they only happened once, and were done by different people.
In the case of Page2, the Commission heard a bullying application from Ms Page, an employee of a market soap stall at the Fremantle Markets. The application was for an order to be made against Mr Van Der Walt, a caretaker at the Markets and Ms Latham, an employee of another stall at the Markets, Crystal Palace.
Ms Page alleged that on one occasion, Mr Van Der Walt threatened to kill her because she left soap crumbs on the floor that he was required to clean up. While the Commission did not find it necessary to ascertain conclusively whether the statements alleged to have been made by Mr Van Der Walt occurred, it held that even if they had, such comments were not repeated and therefore did not meet the definition of a worker being “bullied at work”.
Ms Page also alleged that Ms Latham “often stared at me with a hostile look”, did not respond when Ms Page said hello or goodbye to her, on one occasion told her to “get f**ked”, and spread rumours about their relationship to other people at the Markets.
While Commissioner Cloghan noted that spreading rumours can constitute bullying, as can telling someone to “get f**ked”, he did not make a finding on whether this behaviour did or did not occur or constitute bullying in this case, but said that if it did occur, it was at least two years ago. He instead characterised the behaviour of Ms Latham as that of someone who has decided to end her friendship with Ms Page and who wanted to be “left alone”.
He declined to make a stop bullying order, saying it was “inappropriate in the circumstances” but suggested that Fremantle Markets consider implementing some policies to deal with relationships between stall holders.
Employee who belittles, swears and yells a risk to health and safety of other employees across employer’s different businesses
Commissioner Hampton made stop bullying orders against an employee of a small real estate business in August, despite the employer already having moved the employee to another associated business.
In this particular case, the Commission found that the employee’s repeated behaviour, which included belittling other employees, swearing and yelling, threatening violence and intimidation, and encouraging colleagues to victimise each other, was bullying.
The employer agreed that the employee’s behaviour constituted bullying and transferred him to a role in an associated business. The Commission held that this was not sufficient to reduce the risk to health and safety that his repeated and serious behaviour caused, so made orders that the employee not approach the employees who had applied for the stop bullying orders, and that he not attend the business premises where the bullying conduct took place. The Commissioner also made orders that the business establish and implement anti-bullying measures, including training and policies.
Lessons for employers
These decisions show that it is essential to a bullying claim that behaviour be repeated. For the purpose of the FW Act, one-off incidents, regardless of their seriousness, will not be found to be bullying.
Employers should ensure that one-off incidents are dealt with appropriately and that they have appropriate bullying policies and procedures in place. This will reduce the risk that one-off incidents become repeated incidents.