In January 2014, the Fair Work Commission (FWC) began exercising its newly vested jurisdiction to make orders in relation to workplace bullying. The new jurisdiction gives the FWC power to make any order, with the exception of reinstatement or a monetary penalty, to prevent bullying.

The FWC have considered a number of applications for bullying orders, these decisions have helped identify the scope of the power and the mechanisms the FWC will put forward in their orders to prevent bullying.

In its last quarterly report (from January to March 2014) the FWC reported that:

  • there had been 151 applications for an order to stop bullying at work;
  • there had been eight (8) decisions made, with only one (1) application being granted and order issued; and
  • out of the 151 applications, 109 applicants stated that they had been bullied by their manager.

Outlined below is a summary of recent decisions and developments which is useful for employers to consider how the new bullying jurisdiction operates.

Ms SB [2014] FWC 2104

This decision was the FWC’s first substantive decision made under the new bullying jurisdiction. In this instance, the FWC declined an application that was made by manager, Ms SB (SB), requesting that an order be made which stopped her subordinates from bullying her.

SB was a team leader and managed a team of delivery support officers (DSOs). SB alleged that another employee, Ms CC (CC) and others in her workplace had been bullying her. SB commenced work in June 2013; a complaint had in fact been made against her in August 2013, however, the employer found this to be unsubstantiated.

CC denied the allegations made relating to unreasonable conduct and made bullying allegations against SB just prior to SB lodging the application. The complaints were investigated on behalf of the employer in the lead up to the hearing and it was found that the allegations against the applicant were justified in part, whereas the complaint by the applicant was not substantiated.

SB sought orders that would stop the alleged conduct by CC, ensure compliance by the employer and others with the workplace policy on bullying and monitoring of the behaviour at the workplace by the employer.

The employer opposed the application citing that there had not been repeated unreasonable conduct and that any conduct was reasonable management action.

SB claimed that she was bullied because:

  • two (2) subordinates had made a complaint against her to the employer;
  • the acceptance of the complaints for investigation by the employer;
  • the employer’s failure to take adequate steps to prevent further complaints from being made against SB;
  • being the target of malicious rumours in the workplace without receiving support from the employer;
  • being harassed on a daily basis by CC;
  • CC documenting SB’s conduct; and
  • being  humiliated  because  of  rumours  spread  by  employees  because  the  employer  had  not  notified  the employees of the outcome of the complaint made against SB.

Commissioner Hampton stated and accepted that making vexatious allegations, spreading rude or inaccurate rumours and conducting investigations in a grossly unfair manner could be considered unreasonable conduct constituting bullying if the conduct occurred repeatedly.

Commissioner Hampton was also of the opinion that a manager could be bullied by their subordinates. However, in these circumstances it was found that there was insufficient evidence to suggest that an individual or group had repeatedly behaved in a manner that would cause a risk to the health and safety of SB. He also stated that behaviour by management will not be bullying if it is reasonable management action carried out in a reasonable manner.

Applicant v Respondent (AB2014/1052)

This decision is the first decision to provide full insight into exactly what the FWC may order when making an order to prevent bullying. On 21 March 2014, Senior Deputy President Drake made the following orders after such was agreed to by the parties at a conference on 4 March 2014. Because these orders were made in private conference, the facts of this matter nor the reasoning of such decision is published.

The order made by the Senior Deputy President Drake were, the respondent:

  • shall complete any exercise at the employer’s premises before 8.00am;
  • shall have no contact with the applicant alone;
  • shall make no comment about the applicant’s clothes or appearance;
  • shall not send any emails or texts to the applicant except in the case of an emergency; and
  • shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

The applicant was also ordered not to arrive at work before 8.15 am.

In addition to the above orders, the order stated that the parties have leave to have the matter relisted for further conference if there is difficulty implementing the orders. This is important because the order does not specify any time limit nor does it allow for great leniency if the order is breached because of a practical reason.

This order was made by consent, but it clearly demonstrates the steps and processes that the FWC are willing to take and implement in the workplace to prevent further bullying.

Tao Sun [2014] FWC 3839

This recent decision handed down by the FWC is another example of an employee who has failed to adequately demonstrate that they have been subjected to bullying for the purpose of s789FC of the Fair Work Act 2009 (Cth).

On 16 June 2014, Commissioner Cloghan dismissed the application and ultimately found that it was not unreasonable for a manager to allocate a project to an employee and monitor his progress on it.

The employee commenced work with the employer as an application developer in April 2012. Mr Sun made two complaints, these were:

  • that his performance review weighting was altered on his first performance appraisal; and
  • that he was provided with a task which fell outside of his job description.

In relation to the first complaint, Mr Sun alleged that the General Manager had changed his performance appraisal, which led him to receive an annual bonus that was less than he expected. The evidence he used to support this allegation was contained in an email between the General Manager and Manager in an electronic diary that Mr Sun had accessed. The employer acknowledged Mr Sun’s complaint and advised  him that they  would formally investigate such. At a later meeting, Mr Sun acknowledged that there was nothing in the email to support or suggest that the General Manager had changed his performance review weightings. On 28 January 2014, the employer formally advised Mr Sun that the allegation could not be substantiated. The FWC also investigated this complaint and came to the same conclusion. The FWC noted that Mr Sun’s evidence regarding the electronic diary was less than convincing and that he did not have permission to access the General Manager’s diary.

Two weeks after making the first complaint, Mr Sun made another complaint stating that a senior manager had appointed him to a task that was outside his job description and capabilities. The employer stated while the task was not included in the job description, the General Manager could allocate employees tasks to undertake irrespective of whether they are within the employee’s skills or position description. Additionally, the General Manager found that Mr Sun’s view that he was not capable could not be supported by his curriculum vitae or his employment to date. The FWC took the same stance as the employer; that it was within their rights to allocate tasks to employees. The FWC stated that it was not sustainable for employees to say that a task is beyond their skill level and if the employer does not agree, allege that there has been workplace bullying.