On 1 January 2014, the new anti-bullying provisions of the Fair Work Act 2009 (Cth) (FW Act) commenced operation. Under these new provisions, the Fair Work Commission (Commission) can make any order that it considers appropriate to prevent a worker from being bullied at work, excluding an order for damages.
A number of applications in the new bullying jurisdiction have now been determined by the Commission, and there are a range of developments of which employers should be aware. One recent decision in particular has provided the first guidance on what sort of behaviour will be considered bullying, as opposed to “reasonable management action,” under the FW Act.
Bullying vs reasonable management action
Ms SB made an application to the Commission for an order to stop bullying under the FW Act1. At the outset, the Commissioner “anonymised” the names of the parties to minimise the impact on any ongoing employment relationships. Ms SB, who was a manager, alleged that she had been subjected to repeated unreasonable treatment by two of her subordinates.
Among other things, Ms SB alleged that her subordinates had made bullying complaints against her, which were accepted for investigation by the employer. As a result, she was subjected to malicious rumours in the workplace and was harassed and badgered on a daily basis.Ms SB also alleged that her employer had failed to take adequate action following its investigation of her bullying complaint.
Under the FW Act, a worker is deemed to have been bullied at work where an individual or group repeatedly behaves unreasonably towards the worker, and where that behaviour creates a risk to health and safety. It excludes reasonable management action that is carried out in a reasonable manner.
In considering Ms SB’s allegations, the Commissioner worked through a number of these elements and adopted an interpretation of “reasonable management action” that appears broader than how it is interpreted in workers’ compensation regimes.
Repeatedly behaving unreasonably and a risk to health and safety
The first element the Commissioner considered was what is meant by “repeatedly behaving unreasonably”. The Commissioner found that this implies the existence of persistent unreasonable behaviour, but might refer to a range of behaviour, and that there is no specific number of incidents required, provided there is more than one occurrence. The Commissioner also followed a previous decision, which found that an applicant may rely on conduct that took place prior to the commencement date of the new anti- bullying laws, in order to demonstrate bullying conduct.2
The Commissioner also found that the assessment of whether or not the behaviour is unreasonable should be applied as an objective test. For an allegation of bullying to be successful, there must be a causal link between the unreasonable behaviour and the risk to health and safety. That risk to health and safety must also be real and not simply conceptual.
Reasonable management action
In considering the operation of the FW Act relating to “reasonable management action,” the Commissioner found that this does not act as an exception, but rather it emphasises the right of management to take reasonable management action in the workplace. The Commissioner asserted that this provision should be given a wide meaning to exclude “everyday actions to effectively direct and control the way work is carried out.”
The Commissioner further stated that the test to be applied was an objective one and related to whether the management action was reasonable and not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”.
The Commissioner emphasised that, in general, management actions do not need to be considered perfect or ideal to be considered reasonable, that a course of action may still be “reasonable action” even if particular steps taken are not, and that any departure from established policies or procedures that occurred may be relevant. The context and circumstances giving rise to the requirement for action were also deemed to be relevant.
Finding and conclusions
Ultimately, in the case of Ms SB, the Commissioner found that the complaints by co-workers and subsequent investigation of the complaints by management did not amount to unreasonable behaviour. The Commissioner also held that the burden of proof lay on the applicant to prove that “repeated unreasonable behaviour” had occurred and that in this instance Ms SB had failed to provide sufficient evidence to support such a finding.
Risk of continued bullying at work
In another recent case in the bullying jurisdiction, the Commission dismissed an employee’s application for an order to stop bullying, because the applicant had been dismissed after he lodged his application.
To be able to make an order to stop bullying, the Commissioner must be satisfied that the worker has been bullied at work by an individual or a group of individuals and that there is a risk that the worker will continue to be bullied at work by the individual or group. Because the applicant had already been dismissed, the Commissioner found that it was no longer possible that there was a risk of continued bullying at work.
This decision highlights the fact that the orders that the Commission can make in respect of the new bullying jurisdiction are restricted to orders directed to stopping bullying at work. They do not allow for the provision of any monetary compensation.
Bottom line for employers
These decisions provide useful guidance for employers in responding to applications in the Commission’s bullying jurisdiction. First, that the Commission is adopting a relatively broad interpretation of “reasonable management action,” which poses an important reminder to employers to educate staff about appropriate management procedures and to follow their own policies and procedures. The decisions also reiterate that there must be a risk of the bullying behaviour continuing in the workplace in order for the Commission to have jurisdiction to deal with the complaint.