On12 May 2014, Commissioner Hampton handed down the Fair Work Commission’s (FWC) first contested decision under the new anti-bullying provisions of the Fair Work Act 2009 (Cth)(Act). The FWC found in favour of the employer that no bullying conduct had taken place within the meaning of the Act.
In this case, a manager made an application for an order to stop bullying. The alleged bully was a direct report of the manager (there was another subordinate implicated who had since left the workplace). The manager also sought orders requiring the employer’s compliance with workplace bullying policies.
The manager claimed that the following conduct towards her constituted bullying:
- Two complaints made against her by two separate subordinates;
- The employer’s decision to investigate the complaints;
- The employer’s failure to take adequate action to prevent similar inappropriate conduct (ie further complaints) from happening again;
- Ongoing malicious rumours in the workplace without support from the employer;
- Being harassed and badgered on a daily basis by the subordinate;
- The subordinate documenting her conduct; and
- Being humiliated as a consequence of rumours and gossip because the employer did not notify employees of the outcomes of the complaints.
Under the Act, a worker is regarded as having been bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety (provided that the worker is at work in a constitutionally-covered business).
Commissioner Hampton accepted that the following behaviour is capable of being considered unreasonable conduct:
- Vexatious allegations being made against a worker;
- Spreading rude and/or inaccurate rumours; and
- Conducting an investigation in a grossly unfair manner.
However, Commissioner Hampton was not satisfied on the evidence that these behaviours occurred in this case.
In the course of the decision, Commissioner Hampton did make some criticisms of the way the employer had handled the complaints and investigation. However, he found that the receipt and investigation of the complaints against the manager was not unreasonable. He said that, while more support could have been provided to the manager, management actions do not need to be perfect or ideal in order to be considered reasonable.
Commissioner Hampton said for management action “to be considered reasonable, the action must be lawful and not be ‘irrational, absurd or ridiculous’”.
It was ultimately found that the limited degree of unreasonable behaviour by the individuals concerned did not create a risk to health and safety.
Commissioner Hampton also made some useful comments about the requirement for bullying conduct to be repeated. He clarified that the same specific conduct does not have to be repeated, nor is there a specific number of times conduct has to occur before it is considered ‘repeated’. Rather, there only needs to be more than one occurrence of unreasonable behaviour. It was also accepted that it was possible for managers to be upwardly bullied by subordinates.
Lessons for employers
While this decision is good news for employers, bullying complaints need to be handled within the full context of the workplace. Do not fall into the trap of concluding that a particular behaviour is not bullying simply because an individual only did it once. The repeated, unreasonable behaviour could include the way you handle the complaint.
Bullying is notoriously difficult to manage and investigate in the workplace as it is often tied up with performance management and other management actions. Added difficulties arise when collecting evidence relating to bullying complaints which often involves ‘he said/she said’ testimony and subjective judgments.
We recommend that legal advice is sought to assist in the handling of bullying complaints to best protect your business.