Bullying at work has long been recognised as a problem. The potential negative consequences arising from workplace bullying are endless, and include risks to health and safety, adverse impacts on culture and morale, increased absenteeism, increased turnover, damage to business reputation, increased costs, and increased exposure to legal claims.
It is no surprise then that in January 2014 the Commonwealth Government took steps towards eradicating the problem by introducing a stop-bullying jurisdiction into one of its principal pieces of employment legislation, the Fair Work Act 2009 (Cth) (FW Act). That jurisdiction enables a ‘worker’ who reasonably believes that he or she has been ‘bullied at work’ to apply to the Fair Work Commission (Commission) for a stopbullying order.
Importantly, the concept of a ‘worker’ is widely defined and has the potential to catch not only employees, but also contractors, subcontractors, labour hire workers, work experience students, trainees, apprentices and some volunteers. This means that most people performing work in or for a business may be eligible to seek a stopbullying order if ‘bullied at work’.
What orders can the Fair Work Commission make?
The Commission can only make an order to stop-bullying if it is satisfied that the worker is ‘bullied at work’ and there is a risk that the bullying will continue. The orders it can make are far-reaching, being any order it considers appropriate to prevent the worker being bullied at work (other than an order requiring the payment of money).
When determining an appropriate order, the Commission must take into account outcomes of any investigation conducted into the alleged bullying, whether there were procedures available to the worker to resolve their bullying grievance and, if they were followed, the outcome of that process. It can also take into account any other matter that it considers to be relevant.
When is a worker ‘bullied at work’?
A worker is ‘bullied at work’ if:
- while they are at work in a ‘constitutionally-covered business’ (which includes a constitutional corporation such as a trading, financial or foreign corporation, the Commonwealth or a Commonwealth authority, a body corporate incorporated in a Territory, and a business or undertaking principally conducted in a Territory or Commonwealth place);
- an individual (or a group of individuals) repeatedly behaves unreasonably towards them (or a group of workers to which they belong); and
- that behaviour creates a risk to health and safety.
Importantly, reasonable management action carried out in a reasonable manner does not constitute being bullied at work.
Lessons from decisions
While the stop-bullying jurisdiction has not had the take up that the Government had originally anticipated, the decisions that have been handed down by the Commission have shed some much needed light on the scope of the jurisdiction.
We set out below some of the matters that have been clarified by these decisions and which may be of interest to the aged care and retirement village sectors.
There must be a temporal connection between the bullying conduct and the worker being at work
Before a stop-bullying order can be made, there must be a temporal connection between the bullying conduct and the worker being ‘at work’.
While each matter will turn on its facts, bullying conduct will likely be regarded as being ‘at work’ if it occurs while the worker is performing work (regardless of the worker’s location or the time of day) or where the worker is engaged in some other activity which is authorised or permitted by the employer (or in the case of a contractor, the principal), such as being on a meal break or accessing social media while performing work.
The concept of ‘bullying’ can be wide
The Commission has observed that bullying can take many forms, including humiliating, intimidating or threatening behaviour.
One decision found that a manager had engaged in repeated unreasonable bullying behaviour towards two employees by swearing at them, undermining their work, belittling them, physically intimidating them, slamming objects on their desks, using threats of violence and attempting to incite the employees to victimise other staff members.
Other cases have held that spreading misinformation or ill-will against a worker could constitute bullying.
Bullying can also take the form of criticising or gossiping about a worker or swearing at a worker in circumstances where the language ‘departs from normal social interaction in the workplace’.
Importantly, the worker’s perception of the alleged bullying conduct will not necessarily be determinative. The Commission will look at the alleged conduct objectively and will form a view about whether it constitutes bullying. For example, in one matter, while a worker honestly believed that he was being bullied by his senior manager’s allegedly unrestrained and ‘malevolently motivated’ micromanagement, the Commission determined that the behaviour constituted reasonable performance management and an ‘ordinary exercise of management prerogative.’ As a result, it was considered reasonable management action and not bullying.
The person doing the bullying does not have to be a co-worker
To be bullied at work, a worker must be subjected to repeated unreasonable behaviour by an individual or group of individuals. Importantly, the bullying individuals do not necessarily have to be co-workers. For example, the Commission recently refused to decline, on jurisdictional grounds, an application for a stop-bullying order made by a caretaker who was an employed director/shareholder of a company contracted to provide caretaking and letting services to a Queensland resort. The application was made by the caretaker against residents or owners of properties a part of that resort. Further, the Commission has previously observed in another matter that, ‘the individuals engaging in the unreasonable behaviour need not be workers, for example, they could be customers of the business or undertaking in which the applicant works.’ As a result, there is scope that bullying behaviour towards a worker by residents or care recipients may fall within this jurisdiction.
There must be a continued risk of bullying
The Commission has had cause to consider stop-bullying applications where the worker has ceased to be employed – for example, because their employment was terminated or because their contract term expired. In these cases, the Commission determined that it could not be satisfied that there was a risk of the bullying continuing and so the applications were dismissed. Of course, this should not be taken to mean that termination is an appropriate response to a stop-bullying application. Such conduct would likely result in a general protections claim under the FW Act, on the basis that it engaged in adverse action to prevent the worker exercising his or her workplace right to bring a stop-bullying claim. We recommend taking legal advice before terminating a worker who has brought a stop-bullying claim.
The Commission has broad powers to make any order that it considers appropriate to prevent the worker from being bullied (other than an order for the payment of money). Orders must be directed at preventing the worker from being bullied, and so far have largely been aimed at:
- managing interactions between a worker and certain individuals (including in one instance, requiring one individual to finish exercise at the workplace by 8.00am and preventing another worker from arriving at work before 8.15am)
- requiring employers to implement appropriate workplace policies.
In one matter, an employer was able to successfully avoid having a stop-bullying order made against it, after a worker was found to have been bullied at work, because of the positive measures it had taken to address the bullying culture in its workplace.
Given the adverse consequences of workplace bullying and the Commission’s preparedness to take into account positive steps taken by employers to actively address workplace bullying, there is significant incentive for employers to take a proactive approach to eradicate or minimise bullying. We recommend:
- Ensuring policies on appropriate workplace behaviour are in place
Make sure your workplace has up-to-date policies on appropriate workplace behaviour, including bullying. These policies should not only explain what bullying is and is not, but should also set out the business’ expectations of its workers, and the complaints process to follow in the event of inappropriate behaviour.
- Educating staff about appropriate workplace behaviour
Have simple and on-point training to explain the business’ expectations of appropriate workplace behaviour to workers, including training in your appropriate workplace behaviour policy. In addition, ensure that managers are adequately trained on policies and procedures relating to underperforming workers, workplace investigations and disciplinary action. Ensure you implement periodic refresher training.
- Acting quickly in the event of bullying allegations
Take immediate steps to address a bullying complaint, including following your own policies, and taking steps to stamp out any future occurrence of the alleged behaviour.
- Monitoring compliance
Periodically check compliance with your appropriate workplace behaviour policies to ensure that they are effective and being followed.