The new anti-bullying jurisdiction of the Fair Work Commission has been operating since 1 January 2014.

Whilst the new laws have not triggered the avalanche of claims anticipated (which is probably due to the inability of the Fair Work Commission  to award compensation to victims of bullying), employers will be interested in the first substantive ruling on the merits of an application under the new bullying jurisdiction.

Under the new provisions of the Fair Work Act 2009, bullying occurs when:

  • a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; and
  • the behaviour creates a risk to health and safety.

Bullying does not include reasonable management action carried out in a reasonable manner.

The circumstances in Ms SB were somewhat unusual. The applicant was appointed by the employer to manage a new team of delivery support officers with her contract containing a 6-month probationary period. During the probationary period of employment, a bullying complaint was made by one of the company's employees supervised by the applicant which was investigated by the company and found to be unsubstantiated. Another employee, supervised by the applicant, also made a bullying complaint against the applicant. The applicant herself lodged a bullying complaint against that subordinate employee and both competing allegations were investigated by AIG on behalf of the company in the immediate lead up to the hearing of this matter. The AIG investigation found that the allegations against the applicant were justified in part, whereas the complaints by the applicant were not substantiated. The applicant sought orders from the Fair Work Commission directed at stopping the alleged conduct by the employee, compliance by the company and others with the workplace bullying policies operating at the workplace, and the monitoring of workplace behaviour by the company.

The applicant relied either directly or indirectly upon the following elements of alleged unreasonable conduct:

  • the making (and receipt by management) of two separate complaints of bullying against her from her subordinates;
  • the acceptance of those complaints for investigation by the employer;
  • that following the favourable finding in relation to the complaint from one employee, the employer took no adequate action to prevent similar inappropriate conduct (ie. further complaint from being made again);
  • 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 the other employee;
  • that employee documenting the applicant's (her manager) conduct; and
  • being humiliated as a consequence of rumours and gossip because the employer did not notify employees at to the outcome of the complaints.

The employer opposed the application on a number of grounds and substantially on the ground that there was an absence of repeated unreasonable conduct and that any conduct by itself was reasonable management action taken in a reasonable manner.

Commissioner Peter Hampton, the head of the Fair Work Commission's anti-bullying panel determined that whilst there were some cultural, communication and management issues in this workplace that should be addressed by senior management, he was not satisfied that the applicant had been bullied at work and dismissed the application.

Commissioner Hampton held that the company's receipt and investigation of the two complaints made against the applicant was the only reasonable and prudent response and there was insufficient evidence that the complaints made against her in her role as manager were part of a coordinated campaign against the applicant. In hindsight, the company should have provided more support (including mentoring and management training) following the resolution of the first complaint. However, this failure was not unreasonable, given the manager's initial reluctance to take up the support that was offered.

Commissioner Hampton further held that the "reasonable management action" exclusion was intended to be interpreted widely and to pick up "every day actions to effectively direct and control the way work is carried out". The test is whether the reasonable management action was reasonable, not whether it could have been undertaken in a manner that was "more reasonable" or "more acceptable". In general terms, this is likely to mean that:

  • 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;
  • consideration may be given as to whether management action involved a significant departure from established policies or procedures and, if so, whether the departure was reasonable in the circumstances;
  • the management action must also be carried out in a "reasonable manner" and what is "reasonable" is a question of fact viewed objectively.

Finally, the Commissioner noted that the specific attributes and circumstances of the situation involving the emotional state and psychological health of the employees involved may also be relevant.

Employers are advised to be highly responsive to any bullying allegations and investigate any complaints made in a prompt and transparent manner. Even if the complainant has lodged an application in order to stop bullying in the Fair Work Commission, it is not too late and we recommend that employers still institute their own investigative process pursuant to an anti-bullying policy.

Case note: Ms SB [2014] FWC 2104 (12 May 2014)

Are Employers Obliged to Accept Backdated Medical Certificates?

This is a frustrating issue for many employers as most people have difficulty accepting that a medical practitioner can certify an illness for a period before any examination occurred.

Commissioner Cambridge of the Fair Work Commission has provided some useful commentary on this issue in a judgment he made concerning an employer’s dispute with a union regarding the term ‘backdated medical certificates’ in the applicable enterprise agreement.

In short, Commissioner Cambridge has cautioned employers against unilaterally rejecting backdated medical certificates (or medical certificates that in effect, operate retrospectively). In making this statement, Commissioner Cambridge referred to section 107 of the Fair Work Act 2009 (Cth) (Act) which does not specify the kind of evidence that an employee must provide in order to satisfy a reasonable person that the employee is not fit for work. As such, the Act does not provide that retrospective medical certificates are not considered acceptable evidence for the purposes of paid personal leave.

Commissioner Cambridge, in referring the terms of the enterprise agreement, further stated as follows:

"…the adoption of a unilateral rejection of retrospective medical certificates represents something of a dangerous intrusion by the employer into an area which, with respect, it has little expertise."

He further went on to state that if the enterprise agreement operated to unilaterally reject retrospective medical certificates as evidence for payment in respect to personal leave, it would be "unreasonable, oppressive and self-evidently inapplicable in cases which for example, involve hospitalisation for more than one day”.

The lesson here is that employers should not automatically reject backdated medical certificates. In fact, unless you have some tangible evidence which demonstrates that the employee was not unfit for work in the relevant period, we would suggest that you accept the retrospective medical certificate as evidence for payment of personal leave.

Case note: Maritime Union of Australia v DP World Sydney Limited [2014] FWC 2682 (24 April 2014)

Enforcing a Restraint? Act Swiftly!

Most employers are aware of the necessity to act swiftly if intending to enforce a contractual restraint. A recent case involving Fairfax media provides a good reminder for all employers that a failure to do so may cause a court not to enforce a restraint in circumstances where it may otherwise have been upheld.

In the case, the ex employee was an executive who oversaw a national sales team of 350 employees and was responsible for managing relationships with Fairfax’s print and digital advertisers. On 10 Decem- ber 2013, the executive resigned from his employ- ment and informed Fairfax that he had accepted a position at Yahoo!7.

Fairfax immediately placed the executive on gar- den leave and sent him a letter reminding him of his post-employment restraints. Fairfax also sent a copy of this letter to Yahoo!7. The post-employment restraints operated so as to prevent the executive from poaching Fairfax’s employees, suppliers and clients and from working for a competitor for a period of six months.

On 19 March 2014, Yahoo!7 sent correspondence to Fairfax advising that it considered that his post- employment restraints were not enforceable and therefore, the executive would be commencing em- ployment with Yahoo!7 on 9 April 2014. This meant that the executive would be commencing employment with a competitor of Fairfax two months prior to the expiry of the six month restraint.

Fairfax responded to Yahoo!7’s letter on 9 April 2014 and demanded that the executive undertake in writing by 11 April 2014, that he would comply with the post-employment restraints. Fairfax then did not lodge an application for an injunction until 17 April 2014.

Justice Ball of the NSW Supreme Court heard Fairfax’s application on 22 April 2014. At the hear- ing, Fairfax sought an interlocutory injunction to stop the executive from working for Yahoo!7 until 11 June 2013 – on the expiration of the 6 month restraint. Whilst Justice Ball said that Fairfax had a strongly arguable case on the reasonableness of the six month restraint given the seniority of the executive’s position, he exercised his discretion not to grant an interlocutory injunction for the following reasons:

  • It would only operate for a period of 7 weeks;
  • The executive undertook not to do advertising work or reveal any confidential information in that 7 weeks; and
  • Fairfax had delayed in bringing the court pro- ceedings – it had waited three weeks to respond to Yahoo!7’s letter dated 19 March 2013 and a further week before instituting proceedings in court.

Justice Ball said that Fairfax had not provided an adequate explanation for those delays which are substantial in the circumstances given the injunction sought would only last for a period of 7 weeks.

The lesson out of this case is to make sure you act immediately to enforce a contractual restraint as any delay could cause a court to refuse to enforce it.

Case note: Fairfax Media Management Pty Limited v Harrison [2014] NSWSC 470 (23 April 2014)(24 April 2014)