Tuesday, 22 July 2014

The Commission has its say: What Constitutes Bullying?

On 1 January 2014 the anti-bullying jurisdiction was introduced into the Fair Work Act to combat bullying in the workplace. The still relatively new jurisdiction allows the Fair Work Commission (FWC) to intervene in workplaces and make anti-bullying orders. While this jurisdiction does not allow for monetary compensation for alleged victims of workplace bullying, a breach of a FWC Order may attract civil penalties.

The Act states that a worker is bullied at work when an individual or group “repeatedly behaves unreasonably towards the worker … and … that behaviour creates a risk to health and safety”. The FWC has now handed down two significant rulings as to what constitutes bullying as opposed to reasonable management action.

In the case of Ms SB [2014] FWC 2104, a manager made various and wide reaching allegations against her employer, on the basis that she had been subject to two separate internal bullying complaints, that the company investigated those complaints and then failed to notify co-workers of the results of those complaints which resulted in “ongoing malicious rumours”. She also alleged that she had been bullied by one of her subordinates.

Pursuant to the Act, the FWC had to consider whether:

(a) an individual or group of individuals had behaved unreasonably towards the applicant; and

(b) whether that behaviour created a risk to health and safety.

The FWC noted that in order to determine whether management action is reasonable, an objective assessment is required and that “the test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable'”. Therefore, “management actions do not need to be perfect or ideal to be considered reasonable” and importantly “any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it”.

Whilst accepting that a manager may be subject to bullying by subordinate employees, the Commissioner ultimately was not satisfied that “the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to health and safety”.

The Commissioner however did note that he did not consider the application as vexatious and that there were some “cultural, communication and management issues in this workplace that should be addressed by senior management”.

In the case of Tao Sun [2014] FWC 3839, an employee claimed that his general manager bullied him when he directed him to take on a project that was not referred to in his job description. He alleged that the general manager changed his performance appraisal which caused him to receive an annual bonus less than he expected. In support of this allegation, Mr Sun had checked his general manager’s emails.

In rejecting the employee’s claim, the FWC stated that:

“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. Such a situation would be tantamount to the Commission endorsing a one sided self determining premise as bullying in the workplace”

Therefore, the FWC notes that “It is not uncommon for [position descriptions] to be couched in general terms and not contain each and every current or projected task to be undertaken”. Further, the Commissioner was hesitant to consider an employee’s eligibility to a discretionary bonus as a form of workplace bullying, unless it can be demonstrated that it was applied in a punitive manner.

In regards to Mr Sun accessing his general manager’s emails, the FWC stated that “Because an employee believes that they are being bullied at work does not give him or her immunity from observing all the policies and practices expected in the workplace and in the employment relationship”.

What does this mean for employers?

The above cases demonstrate that reasonable management action, or action taken by management that can objectively be considered as reasonable, will not be considered as workplace bullying. However, employers should take caution in ensuring that any investigation undertaken as a result of a bullying complaint is undertaken in a transparent and justifiable manner.

HR Legal can assist you if you require advice on workplace bullying.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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