Before the commencement of the Fair Work Commission's (FWC) bullying jurisdiction, there were a number of reports that troublesome employees were promising to make claims once the new laws commenced.  Ten months later, the Australian Public Service has its first bullying decision from the FWC. 

The decision is Applicant v Respondent [2014] FWC 6285, and it has a number of familiar features of a bullying complaint:

  • The bullying conduct involved performance management
  • The employee suffered a medical condition as a result of the perceived bullying
  • Internal investigations undertaken by the Agency did not identify any bullying on the part of the relevant managers

The decision raises a few issues that agencies should bear in mind when thinking about the management of bullying claims. 

  1. Proactive responses to employee complaints is important

As is necessary, the Agency involved appears to have taken a proactive approach to managing the employee's complaints.  Two internal investigations were undertaken in relation to the employee's bullying complaints.  Common questions are: 'What form should an investigation take?' or 'Should the investigation be an APS Code of Conduct investigation?'

It is not clear from the decision whether the investigations that were undertaken by the Agency were in accordance with its procedure for determining breaches of the APS Code of Conduct (Code Procedure).  However, in many cases, it is entirely appropriate for at least initial inquiries into bullying allegations to be undertaken outside of Code Procedures.  

Code Procedures are a prerequisite for imposing sanctions under the Public Service Act 1999(Cth).  Conducting a Code Procedure to verify a bullying complaint is not essential and, if necessary, can be conducted later in the event that there appears to be substance to the complaint.

It is also worth remembering that, in Vata-Meyer v Commonwealth [2014] FCCA 463, Driver J said that the informal handling of a racial discrimination complaint was 'reasonable', 'adequate' and 'appropriate in the circumstances'. 

  1. The FWC is taking a pragmatic approach to bullying, so you should too

The outcome of the decision is entirely consistent with the approach taken by the FWC in the small number of decisions that have been trickling in since the jurisdiction commenced. 

The FWC recognises that bullying is an overused term.  It is frequently used to describe a spectrum of conduct, along with interpersonal disputes, as well as behaviour that might also be described as bad manners.  So, the FWC is taking a very practical approach to identifying bullying.  For example, the FWC has said that:

  • managers sometimes raise their voice, or become angry or upset, and isolated instances are not bullying
  • workplace change can be emotionally challenging for some individuals, but it does not mean that they are being bullied
  • it is natural for a well-functioning group of individuals to maintain solidarity when challenged by a new person

Comments such as these confirm a common sense approach to bullying.  Agencies should be taking a lead from the FWC and use the FWC's observations to assist in educating staff on what is and what is not bullying.  In this regard, Commissioner Roe's decision in V.C. [2014] FWC 3940 makes a number of useful observations. 

  1. Employees who make claims may genuinely believe they are being bullied (even if they are wrong)

Frequently, the observation made by the FWC in its decisions is that the complainant genuinely believes they are the subject of repeated unreasonable behaviour, but they are wrong.

An approach to addressing misconceptions about an employee's perceived treatment comprises more than training staff about what is or is not bullying.  Research shows us that less tangible factors such as trust and leadership are important in addressing the over-reporting of bullying. 

In addition, some employees have high-conflict personalities and, once certain emotions are triggered, have difficulty seeing their manager as anything other than a bully.  In these cases, communication techniques are important.  Supervisors and HR managers should have, as part of their every day manager's tool kit, strategies or communication techniques to help diffuse conflict and to limit it occurring.