The Fair Work Commission has handed down the first substantive decision dealing with an application for an order to stop bullying and has set out a number of guiding principles that will assist employers faced with a complaint of bullying or an application to the Commission. The decision In Ms SB [2014] FWC 2104, Ms SB applied to the Commission for an order to stop bullying. Ms SB was employed as a Delivery Support Team Leader and managed a team of employees, including Ms CC and Ms NP. In her application, Ms SB alleged that the following conduct amounted to bullying:

  • the making of separate bullying complaints against her by Ms CC and Ms NP where the complaints were unfounded and made in concert as part of a campaign to bully Ms SB;  
  • the acceptance of those complaints for investigation by the employer;  
  • the failure of the employer to prevent Ms NP from making further complaints after she made a bullying complaint against Ms SB that was found to be without substance;
  • being the target of ongoing malicious rumours in the workplace without receiving support from the employer;
  • being harassed and badgered on a daily basis by Ms CC including by Ms CC documenting her conversations with Ms SB; and 
  • being humiliated as a consequence of rumours and gossip because of the employer’s failure to properly investigate false rumours about an alleged incident at a social event and to notify other employees that the allegation lacked foundation.

Ms SB sought orders from the Commission that the bullying conduct cease, compliance by the employer and others in the workplace with the employer’s anti-bullying policy and that the employer monitor workplace behaviour. The employer opposed the application.  The issues before the Commission were: 

  • whether an individual or group of individuals repeatedly behaved unreasonably towards MS SB 
  • whether any such behaviour created a risk to health and safety; and 
  • whether any of the conduct was reasonable management action taken in a reasonable manner. 

The Commission accepted that making a vexatious complaint, spreading rumours and conducting an investigation in a grossly unfair manner could each amount to unreasonable conduct. It also accepted that a manager could be bullied by an employee who reported to them. In this case however, the evidence was “insufficient to provide a basis for findings that an individual or group of individuals have repeatedly behaved unreasonably towards the applicant so as to create a risk to health and safety ”.  Guiding principles  In dismissing the application, the Commission noted the following general principles: 

  • Repeated unreasonable behavior does not require any specific number of incidents but there must be more than one occurrence; 
  • It is not necessary for the same specific behaviour to be repeated; 
  • Unreasonable behaviour means behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable; 
  • There must be a causal link between the unreasonable behaviour and the risk to health and safety. The behaviour does not need to be the sole cause of the risk, but must be a substantial cause of the risk when viewed in a common sense and practical way; 
  • Risk to health and safety means the “possibility” of danger to health and safety. The risk must be real and not simply conceptual;
  • Behaviour will not be bullying conduct if it is reasonable management action carried out in a reasonable manner. Whether management action is reasonable requires an objective assessment of the action having regard to the circumstances and knowledge of those involved at the time; 
  • The specific circumstances of the situation may be relevant, including for example, “the emotional state and psychological health of the worked involved”; and 
  • In relation to reasonable management action: 
    • “management actions do not need to be perfect or ideal to be considered reasonable; 
    • a course of action may still be ‘reasonable action’ even if particular steps are not;   
    • to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;   
    • any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and  
    • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.” 

Lessons for employers

Employers should: 

  • ensure that they have up to date policies in place dealing with bullying and that staff receive training on those policies; and 
  • bear the above principles in mind when responding to complaints of bullying and conducting investigations into allegations of bullying.