Key points

• The Fair Work Commission has provided further confirmation that an employee’s subjective belief that they have been bullied will not, by itself, be sufficient to give rise to a finding of workplace bullying.

• Employers should ensure that they have robust management and investigation processes in place to minimise the risk of a successful bullying claim being made against their managers.

A recent decision by the Fair Work Commission has provided further guidance on what is, and is not, repeated and unreasonable behaviour constituting workplace bullying for the purpose of its anti- bullying jurisdiction.

Background

Ms Edwards, a Sales Consultant at E & S Trading, alleged that she had been bullied at work by other Sales Consultants and by various managers.

In April 2016, she lodged an application with the Fair Work Commission (Commission) for an order to stop bullying under the anti- bullying provisions of the Fair Work Act 2009 (Cth) (FW Act). The matter was unable to be resolved in conference, and Ms Edwards requested that the application be dealt with by way of arbitration.

In relation to her colleagues, Ms Edwards alleged that they had “ganged up on her”, taken sales from her, and engaged in abusive and aggressive behaviour.

Ms Edward’s complaints about her managers included that they had failed to properly investigate complaints and issues raised by her, and that she was singled out and treated less favourably than other Sales Consultants. She also alleged she had been given a final written warning in relation to an incident in November 2015 and was otherwise managed in a manner which amounted to workplace bullying.

Under the FW Act, the Commission can only make an anti-bullying order if it is satisfied that:

• an application has been made under the relevant provisions of the FW Act;

• “the worker has been bullied at work by an individual or group of individuals”; and

• “there is a risk that the worker will continue to be bullied at work by the individual or group”.1

The decision

An application made under s 789FC “must also be one in which the employee ‘reasonably believes that he or she has been bullied at work’”. The Commission held that there is both a subjective and objective component to this test:

“[N]ot only must the belief be actually and genuinely held by the employee but, in addition, it must be reasonable in the sense that it is able to be supported or justified on an objective basis”.2

The Commission accepted that while Ms Edwards genuinely believed that she had been bullied at work, this did not mean that it was a “reasonablebelief.  

In determining whether there was an objective basis for Ms Edward’s complaint, the Commission examined the definition of “bullied at work”. This requires that an individual, or a group of individuals, “repeatedly behaves unreasonably towards the worker; or a group of workers of which the worker is a member…[and] that the behaviour creates a risk to health and safety.” 3

In this case, the meaning of “repeatedly behaves unreasonably” was critical. The Commission drew on a number of recent decisions and confirmed that “repeated behaviour” may include a range of different behaviours over time; and although there is no set number, one or more of these behaviours must have occurred more than once. The inclusion of “unreasonably” invokes an objective test— the behaviour in question must be such that a reasonable person, having regard to the circumstances at the time, may consider the behaviour unreasonable. 4

The Commission emphasised that, in interpreting and applying the definition of “repeatedly behaves unreasonably”, the purpose of the substantive provisions (to prevent bullying at work) should be front of mind.

The Commission stated that “in order for conduct to be reasonable, it does not have to be the best or the preferable course of action”. 5 It was accepted that, although the November 2015 incident and the processes that followed “could have been handled differently” by management,6 E & S Trading did behave reasonably in facilitating an external investigation, mediation, and various detailed discussions with employees.

The Commission made some comments in the course of his judgment about Ms Edwards’ perceived version of events. The Commission highlighted that a number of the claims made by her were both “not supported or corroborated by other sworn evidence” and “denied or refuted by the evidence of other witnesses”. 7 This led the Commission to conclude that, although Ms Edwards clearly had a “genuine belief about the nature of the various matters … and what motivated that behaviour”, the evidence could not support a finding “on any objective basis that these individuals have repeatedly behaved unreasonably”. 8

The Commission ultimately held that although there had been “a number of difficult issues” at E & S Trading’s Moorabin store,9 including tensions between staff, there was insufficient evidence to conclude that “repeated and unreasonable behaviour” constituting workplace bullying had taken place.10 Rather, the commission was satisfied that these issues were the result of “a sales culture and a significant degree of hype and competition.”

Given that no bullying at work was found to have taken place, there was no need to determine the third issue of whether there was a continuing risk of bullying to Ms Edwards.

Bottom line for employers

• This case reiterates that an employee’s subjective belief that they have been bullied will not, alone, be sufficient for a finding of bullying by the Commission, even if it is accepted that the belief is genuinely held by the employee.

• In this case, the employer’s robust processes, which included an external investigation, mediation, and detailed discussions with senior management, helped to establish that its managers’ actions were “reasonable management action carried out in a reasonable manner”, and not workplace bullying.

• Employers should seek advice at an early stage whenever allegations of workplace bullying are made to ensure that appropriate management and investigation processes are put in place.