Recent decisions of the Fair Work Commission (FWC) provide employers with some guidance on the operation of the now six-month old FWC anti-bullying jurisdiction.

Implications for employers

These cases suggest that:

  • when employment is terminated after an anti-bullying application has been brought, the application will be dismissed as there is no risk of the bullying behaviour continuing;

  • employers can allocate work and give fair and constructive feedback on a worker’s performance, provided objectively such management actions are reasonable and carried out in a reasonable way. Guidance has been provided as to when management action may be “reasonable”;

  • for “repeated” unreasonable behaviour constituting bullying to have occurred, unreasonable behaviour must have occurred more than once; and

  • for bullying to be found to have occurred, there must be an apparent causal link between the behaviour and a risk to health and safety.

Background: relevant law

From 1 January 2014, the FWC has been empowered under Part 6-4B of the Fair Work Act 2009 (FW Act), to deal with applications by eligible workers for orders to stop workplace bullying.

Workplace bullying, for this purpose, is repeated unreasonable behaviour toward a worker (or workers). Such behaviour must also create a risk to health and safety. Workplace bullying does not include “reasonable management action carried out in a reasonable manner”.

Case one: Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408

Background

Mitchell Shaw applied to the FWC for an order to stop bullying. The application was made against ANZ and unnamed ANZ employees.

Mr Shaw’s employment was terminated after he made the application. ANZ then applied for an order dismissing Mr Shaw’s application on the basis that the application to stop bullying had no reasonable prospect of success, as Mr Shaw was no longer an employee. Mr Shaw argued that his application should be permitted to continue because his termination of employment whilst on parental leave was invalid and may be overturned.

Decision

Deputy President Gostencnik concluded that Mr Shaw’s application had no reasonable prospect of success and dismissed the application without considering whether Mr Shaw had in fact previously been bullied at work. This was because:

  • Mr Shaw’s termination ended the employment relationship;

  • the FWC had no power to make an order to stop bullying unless it could be satisfied that there was a risk that Mr Shaw would continue to be “bullied at work”. Given that Mr Shaw was no longer employed by ANZ, he could not be “bullied at work” and there was no risk the behaviour would continue; and

  • the potential for Mr Shaw to be reinstated at ANZ in the future due to a separate adverse action claim did not have bearing on the question of the whether the employment relationship has ended. Whether he had been unlawfully dismissed was a matter to be determined elsewhere. If, in the future Mr Shaw was reinstated, he would be at liberty to make a new anti-bullying application at that time.

Case two: Mr Tao Sun [2014] FWC 3839

Background

Tao Sun made an application to the FWC for an order to stop bullying. The application was made against his employer, CITIC Pacific Mining Management Pty Ltd (CITIC Pacific), and Mr Achemedei, General Manager Information Systems, an employee of CITIC Pacific. Mr Sun, an Application Developer, contended that the bullying was in the following forms:

  • in December 2013, Mr Sun collapsed at work and was taken to hospital. He later alleged that the collapse was due to Mr Achemedei altering the weightings of Mr Sun’s performance review, which decreased Mr Sun’s annual bonus. Mr Sun’s supporting evidence for the allegation that Mr Achemedei had altered his performance review was that he had seen an email from Mr Achemedei to Mr Sun’s manager, Mr Liu, regarding possible action that would be taken as a consequence of Mr Sun’s performance review. CITIC Pacific subsequently undertook an investigation and found that the allegations were unsubstantiated; and

  • on 14 February 2014, Mr Sun and Mr Achemedei had a meeting regarding Mr Sun’s 2013 performance appraisal and a project that Mr Achemedei wished Mr Sun to undertake. Mr Sun alleged that this task was not within his position description and Mr Achemedei stated that it was within his authority to direct Mr Sun to perform the work. Mr Sun complained about the raising of his performance appraisal and Mr Achemedei’s direction. CITIC Pacific conducted another investigation and found the allegations unsubstantiated.

CITIC Pacific and Mr Achemedei denied that any bullying occurred and submitted that the actions taken in relation to Mr Sun were reasonable management actions.

Decision

Commissioner Cloghan found in favour of CITIC Pacific, holding that:

  • there was no evidence to support the complaint that Mr Achemedei had altered Mr Sun’s performance review;

  • non-payment or payment of a lesser amount of a discretionary bonus did not constitute bullying, unless it could be demonstrated that the discretionary bonus was used in a punitive manner as part of a course of bullying conduct. There was no evidence of this here;

  • in relation to Mr Achemedei’s direction to Mr Sun to perform the project Mr Sun did not wish to perform,“it is not sustainable for employees to say that a task is beyond their skill level and, if the employer does not agree, allege that it is workplace bullying.” Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. It is reasonable for employers to allocate work and for the managers and supervisors to give fair and constructive feedback on a worker’s performance. Mr Achemedei’s actions were reasonable and were carried out in a reasonable manner. They did not constitute bullying behaviour; and

  • even if an employee believes he or she is being bullied, they are still obliged to undertake their duties and responsibilities, including complying with workplace policies and procedures. Commissioner Cloghan made this observation in relation to evidence that Mr Sun had accessed Mr Archemedi’s emails without permission and it was this access which had led him to the email which resulted in his December 2013 bullying complaint.

Case three: Ms SB [2014] FWC 2104

Background

SB was a team leader and managed a team of employees.

Two employees who reported to SB, NP and CC, made bullying complaints against SB.

SB claimed that she was being bullied by her team and their bullying complaints. She claimed that she was the target of malicious rumours and was being harassed and badgered.

The employer investigated and concluded that neither NP nor SB’s allegations were substantiated, but that CC’s allegations were justified in part.

SB made an application to the FWC for orders to stop the alleged bullying of her by CC, to require compliance by the employer and others with workplace bullying policies and to require monitoring of workplace behaviour by the employer.

The employer opposed the application on a number of grounds, including that there was an absence of “repeated unreasonable conduct” and that that any conduct by itself was reasonable conduct taken in a reasonable manner.

Decision

Commissioner Hampton dismissed SB’s application, holding that:

  • there is no specific number of incidents required for unreasonable behaviour to be considered to have occurred “repeatedly”, provided it is more than once. Nor does it appear that the same specific behaviour must be repeated;

  • unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, would consider to be unreasonable;

  • in order for behaviour to constitute bullying, there must be a causal link between the behaviour complained of and the risk to health and safety. The behaviour may not be the only cause of the risk to health and safety, but it must be a substantial cause. The risk must be real, but may be a risk of possible rather than actual danger;

  • whether conduct constitutes reasonable management action requires an objective assessment of the action in the context of the circumstances and knowledge of those involved. The test is whether management action is reasonable, not whether it could have been undertaken in a “more reasonable” or “more acceptable” way. Matters for consideration include, for example:

    • the circumstances that led to and created the need for management action to be taken;

    • the circumstances while the management action was being taken;

    • the consequences that flowed from the management action;

    • the specific attributes and circumstances of the situation, including the emotional state and psychological health of the worker involved;

    • whether the action involved a significant departure from established policies or procedures, and, if so, whether the departure was reasonable in the circumstances; and

    • whether the action was taken in a reasonable manner, including the action, the facts and circumstances giving rise to the requirement or action, the way in which the action affects the worker, the circumstances in which the action was implemented and any other relevant matters;

  • action does not have to be perfect to be considered reasonable management action. Action must be lawful and not irrational, absurd or ridiculous. A course of action may be reasonable even if some steps were not, and unreasonableness must arise from the actual management action, not the worker’s perception of it;

  • in this case, the conduct of investigations in response to the complaints made by NP and CC was not unreasonable and, in fact, was the only reasonable and prudent response. Further, the making of allegations by CC was not unreasonable and there was insufficient evidence to support SB’s submissions that the complaints were part of bullying against her. While the making of vexatious allegations and spreading rumours could be seen as bullying, in this case the behaviour was only bordering on unreasonable and therefore, did not fall into the definition of bullying behaviour. In particular, the behaviour did not create a risk to health and safety; and

  • notwithstanding the above, SB’s application was not made without foundation and there were some“cultural, communication and management issues in this workplace that should be addressed by senior management”. He also noted that there was some tension between the external investigation findings and some of his own. He recommended that the employer have regard to his findings and observations in dealing with the issues going forward.

Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408

Mr Tao Sun [2014] FWC 3839

Ms SB [2014] FWC 2104