Bullying at work has long been recognized as a problem. The potential negative consequences are endless, including risks to health and safety, adverse impacts on culture and morale, increased absenteeism and turnover, damage to business reputation, increased costs and increased exposure to legal claims.
As a result, it was not a surprise when, in January 2014, the Australian Government took steps toward eradicating the problem by introducing into one of its principal pieces of employment legislation, the Fair Work Act 2009 (Cth) (FW Act), a stop-bullying jurisdiction. That jurisdiction enables a "worker" who reasonably believes that he or she has been "bullied at work" to apply to the Fair Work Commission (FWC) for a stop-bullying order.
Importantly, the concept of a "worker" is widely defined and has the potential to include not only employees, but also contractors, subcontractors, labor hire workers, work experience students, trainees, apprentices and some volunteers. This means that many persons performing work in or for a business may be eligible to seek a stop-bullying order if they are "bullied at work."
What orders can the FWC make?
The FWC can only make an order to stop bullying if it is satisfied that the worker has been "bullied at work" and there is a risk that the bullying will continue. The orders it can make are far-reaching; the FWC may do anything it considers appropriate to prevent the worker from being bullied at work short of requiring the payment of money.
When determining an appropriate order, the FWC must take into account the findings of any investigation that may have been conducted into the alleged bullying, including whether there were procedures available to the bullied worker to resolve his or her grievance and, if such procedures were followed, the outcome of that process. It may also take into account any other facts and circumstances it considers to be relevant.
When is a worker "bullied at work"?
A worker is "bullied at work" if the following three elements are present:
- The worker is at work in a "constitutionally-covered business," defined as 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 the worker or a group of workers to which he or she belongs; and
- The unreasonable behavior creates a risk to the worker's health and safety.
It is important to note here that being subjected to a 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 traction that the Australian Government had originally anticipated, the decisions that have been handed down by the FWC have shed some much needed light on the scope of the jurisdiction.
We discuss below some of the issues that have been clarified by these decisions.
- The applicant must be a "worker".
While the statutory definition of a "worker" is broad, the FWC has held that an individual will only be a worker for the purposes of the stop-bullying jurisdiction if that individual carries out work and does so for a person conducting a business or undertaking. This means that there must be a connection between the work being carried out by the individual and the undertaking of the employer/principal. For example, the FWC has indicated that work being carried out by a student for a teacher, domestic work by a family member or any relationship outside the commonly understood sense of work for hire (paid or unpaid) is unlikely to fall within the scope of the stop-bullying jurisdiction.
- 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 is engaged in some other activity that is authorized or permitted by the employer (or in the case of a contractor, by the principal), such as being on a meal break or accessing social media while performing work.
- The concept of "bullying" can be wide.
The FWC has observed that bullying can take many forms, including humiliating, intimidating or threatening behavior.
In one decision, it found that the manager of a real estate business had engaged in repeated unreasonable bullying behavior toward two employees by swearing at them, undermining their work, belittling them, physically intimidating them, slamming objects on their desks, using threats of violence and inciting them to victimize other staff members.
Other cases have held that spreading misinformation or ill will against a worker could constitute bullying and as can criticizing 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 FWC will look at the alleged conduct objectively and decide whether it constitutes bullying. For example, in one case, a worker honestly believed that he was being bullied by his senior manager’s allegedly unrestrained and "malevolently motivated" micromanagement. However, the FWC determined that the manager's behavior constituted reasonable performance management—an "ordinary exercise of management prerogative"—and, hence, was not bullying.
- There must be a continued risk of bullying.
The FWC has had cause to consider stop-bullying applications where the worker has ceased to be employed because, for example, the worker was terminated or his or her contract term expired. In these cases, the FWC determined that it could not be satisfied that there was a risk of the bullying continuing and so the applications were dismissed.
This should not be taken to mean that termination of a worker is an appropriate response to a stop-bullying application. Such conduct would likely result in an employer or principal facing a different type of complaint, namely a general protections claim under the FW Act, on the grounds that it took an adverse action to prevent the worker from exercising his or her workplace right to bring a stop-bullying claim. We therefore recommend consulting with counsel before terminating a worker who has brought a stop-bullying claim.
- 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 behavior by an individual or group of individuals. Importantly, the bullying individual or individuals do not have to be the victim's co-worker(s). For example, the FWC recently refused to decline on jurisdictional grounds an application for a stop-bullying order made by a director/shareholder of a company with whom the company had contracted to provide caretaking and letting services to a Queensland resort, where that application was made against residents or owners of properties that were part of that resort. Further, the FWC had previously observed, in another matter, that "[t] he 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."
- Risk to health and safety.
There must be a causal link between the behaviour and the risk to the worker’s health and safety. Proof of actual harm to health and safety is not necessary. What is key is that the worker be able to demonstrate that the bullying behaviour creates a risk to his or her health and safety. While the bullying behavior must be a substantial cause of the risk, it need not be the only cause.
- Possible orders
The FWC has broad powers to make any order that it considers appropriate to prevent a 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 (such as, in one instance, requiring an individual to finish exercise at the workplace by 8:00 a.m. and preventing another worker from arriving at work before 8:15 a.m.); and
- Requiring employers to implement appropriate-workplace-behavior 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 FWC’s readiness 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 minimize bullying. We therefore recommend the following:
1. Ensure that policies requiring appropriate workplace behavior are in place.
Make sure your workplace has up-to-date written policies on appropriate workplace behavior, including bullying. These written policies should explain what bullying is and is not, and also lay out the business's expectations of its workers. The policies should also include a complaint process for bringing to the employer's attention any facts or allegations of inappropriate behavior in the workplace.
2. Educate staff about appropriate workplace behavior.
Have simple and on-point training explaining the business's expectations regarding appropriate workplace behavior and the procedures for addressing inappropriate behavior. In addition, make sure that managers are adequately trained on policies and procedures with respect to underperforming workers, workplace investigations and disciplinary actions. Schedule periodic refresher training for employees and managers.
3. Act quickly in the event of bullying allegations.
Employers should take immediate steps to address a bullying complaint (following the action plan in its appropriate-workplace-behavior policy) and prevent any future occurrence of the alleged inappropriate behavior.
4. Monitor compliance.
Periodically check compliance with your appropriate-workplace-behavior policy to ensure that they are being followed and are effective.
This article was authored by Stephanie Nicole, Partner, Gadens LLP