In January 2014, the Fair Work Commission (FWC) began exercising its newly vested jurisdiction to make orders in relation to workplace bullying under the Fair Work Act 2009 (Cth) (FW Act). The new jurisdiction gave the FWC power to make any order, with the exception of reinstatement or a monetary penalty, to stop/prevent bullying. Outlined below is a summary of decisions the FWC has made in the past twelve (12) months that are useful for employers to consider in seeing how the new bullying jurisdiction operates and what it means for employers, employment practices and workplaces.

MS SB [2014] FWC 2104

This decision was the FWC’s first substantive decision made under the new bullying jurisdiction. In this instance, the FWC declined an application that was made by manager, Ms SB (SB), requesting that an order be made which stopped her subordinates from bullying her.

SB was a team leader and managed a team of delivery support officers (DSOs). SB alleged that another employee, Ms CC (CC) and others in her workplace had been bullying her. SB commenced work in June 2013; a complaint had in fact been made against her in August 2013, however, the employer found this to be unsubstantiated.

CC denied the allegations made against her and made bullying allegations against SB just prior to SB lodging her application. All complaints were investigated on behalf of the employer in the lead up to the FWC hearing and it was found that the allegations against SB were justified in part, whereas the complaint by SB (against CC) was not substantiated.

SB sought orders that would stop the alleged conduct by CC, ensure compliance by the employer and others with the workplace policy on bullying and monitoring of the behaviour at the workplace by the employer.

The employer opposed the application citing that there had not been repeatedunreasonable conduct and that any conduct was reasonable management action.

SB claimed that she was bullied because:

  • two (2) subordinates had made a complaint against her to the employer;
  • the acceptance of the complaints for investigation by the employer;
  • the employer’s failure to take adequate steps to prevent further complaints from being made against SB;
  • being the target of malicious rumours in the workplace without receiving support from the employer;
  • being harassed on a daily basis by CC;
  • CC documenting SB’s conduct; and
  • being humiliated because of rumours spread by employees because the employer had not notified the employees of the outcome of the complaint made against SB.

Commissioner Hampton stated and accepted that making vexatious allegations, spreading rude or inaccurate rumours and conducting investigations in a grossly unfair manner could be considered unreasonable conduct constituting bullying if the conduct occurred repeatedly.

Commissioner Hampton was also of the opinion that a manager could be bullied by their subordinates. However, in these circumstances it was found that there was insufficient evidence to suggest that an individual or group had repeatedly behaved in a manner that would cause a risk to the health and safety of SB. He also stated that behaviour by management will not be bullying if it is reasonable management action carried out in a reasonable manner.

APPLICANT V RESPONDENT (AB2014/1052)

This decision was the first to provide full insight into exactly what the FWC may orderwhen making an order to prevent bullying.  On 21 March 2014, Senior Deputy President Drake made the following orders after such was agreed to by the parties at a conference on 4 March 2014. Because these orders were made in private conference, the facts of this matter nor the reasoning of such decision is published.

The order made by the Senior Deputy President Drake were, the Respondent:

  • shall complete any exercise at the employer’s premises before 8.00am;
  • shall have no contact with the Applicant alone;
  • shall make no comment about the Applicant’s clothes or appearance;
  • shall not send any emails or texts to the Applicant except in the case of an emergency; and
  • shall not raise any work issues without notifying the Chief Operating Officer of the Respondent, or his subordinate, beforehand.

The Applicant was also ordered not to arrive at work before 8.15 am.

In addition to the above orders, the order stated that the parties were granted leave to have the matter relisted for further conference if there was difficulty implementing the actions set out in the order. This is important because the order did not specify any time limit nor did it allow for great leniency if it was breached because of a practical reason.

UPDATE: Approximately three (3) months after making the order was made, the Applicant made a further application to the FWC advising that the conflict between herself and the Respondent was now negligible and the Applicant was comfortable to approach her employer in the future. The Applicant noted that the intervention of the FWC was “very positive and helpful”.

TAO SUN [2014] FWC 3839

This decision handed down by the FWC is another example of an employee who failed to adequately demonstrate they were bullied for the purpose of the FW Act.

On 16 June 2014, Commissioner Cloghan dismissed the application and ultimately found that it was not unreasonable for a manager to allocate a project to an employee and monitor his progress on it.

The employee commenced work with the employer as an Application Developer in April 2012. Mr Sun made two (2) complaints, these were:

  • his performance review weighting was altered on his first performance appraisal; and
  • he was provided with a task which fell outside of his job description.

In relation to the first complaint, Mr Sun alleged that the General Manager had changed his performance appraisal, which led him to receive an annual bonus that was less than he expected. The evidence used to support this allegation was contained in an email between the General Manager and Manager in an electronic diary that Mr Sun had accessed.

The employer acknowledged Mr Sun’s complaint and advised him that they would formally investigate such. At a later meeting, Mr Sun acknowledged that there was nothing in the email to support or suggest that the General Manager had changed his performance review weightings.  On 28 January 2014, the employer formally advised Mr Sun that the allegation could not be substantiated. The FWC also investigated this complaint and came to the same conclusion. The FWC noted that Mr Sun’s evidence regarding the electronic diary was less than convincing and that he did not have permission to access the General Manager’s diary.

Two weeks after making the first complaint, Mr Sun made another complaint stating that a senior manager had appointed him to a task that was outside his job description and capabilities. The employer stated while the task was not included in the job description, the General Manager could allocate employees tasks to undertake irrespective of whether they are within the employee’s skills or position description. Additionally, the General Manager found that Mr Sun’s view that he was not capable could not be supported by his curriculum vitae or his employment to date. The FWC took the same stance as the employer; that it was within their rights to allocate tasks to employees. The FWC stated that it was not sustainable for employees to say a task is beyond their skill level and if the employer does not agree, allege that there has been workplace bullying.

BOWKER AND OTHERS V DP WORLD MELBOURNE LIMITED T/A DP WORLD; MARITIME UNION OF AUSTRALIA, THE VICTORIAN BRANCH AND OTHERS [2014] FWC 7381

This decision considered the requirement of the bullying conduct occurring “at work” to substantiate a claim under the FW Act. Here, three (3) employees made complaints against the employer, DP World, and the Maritime Union of Australia (MUA) for an order confirming that the employees had been bullied, as a result of conduct which included the posting of material on social media and meeting’s held offsite.

Deputy President Gostencnik referred the matter to the Full Bench of the FWC, who provided the following clarification around the qualification of “at work”:

“… encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorized or permitted by the employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).”

Further, in relation to social media the Full Bench noted:

  • there is no requirement that the person who posts to social media be at work at the time of posting;
  • posts which constitute bullying will mean that the bullying continues for the entire time the posts remain available on the social media platform; and
  • it is sufficient if the alleged victim of bullying accessed the social media posts whilst at work.

The Full Bench remitted the matter back to Deputy President Gostencnik to determine, on the evidence, within the scope of this clarification. We continue to await the FWC’s decision in this instance.

NOTABLE RULINGS

Other notable rulings made the FWC in relation to this bullying jurisdiction include:

  • the FWC’s granting of legal representation to parties to allow for expeditious determination of these applications: The Applicant v The General Manager and Company C [2014] FWC 3940
  • the FWC reminding employees that they must act reasonably, in spite of allegations of bullying conduct against them, and an application under the FW Act does not validate employee’s conduct: Tao Sun
  • the FWC refusing suppression of the parties’ identities to ensure “open justice” noting that “mere embarrassment, distress or damage by publicity” is not sufficient grounds to justify a suppression order: Justin Corfield [2014] FWC 4887
  • the FWC acknowledging that an employer’s conduct falling below “the best human resources practice” may not constitute bullying under the FW Act: Mac v Bank of Queensland Limited; Locke; Thompson; Hester; Van Den Heuvel; Newman [2015] FWC 774