Australia: Anti-bullying jurisdiction of the Fair Work Commission (FWC)

The Australian Fair Work Commission (FWC) has been faced with an interesting range of issues to consider since 1 January 2014 when it was granted the power to make orders to prevent a worker from being bullied at work. To date, only one "stop bullying" order has been made.

When can the FWC make orders in relation to "bullying"?

Section 789FC of the Fair Work Act 2009 (Cth) (FW Act) provides that a worker who reasonably believes he or she has been bullied at work may apply to the FWC for an order to prevent the worker from being bullied at work. A worker is ‘bullied at work’ if, while the worker is at work, an individual or a group of individuals repeatedly behaves unreasonably towards the worker in such a way as to create a risk to health and safety. The FW Act specifically provides that reasonable management action carried out in a reasonable manner will not amount to bullying at work.

What has the FWC considered so far?

While some had concerns that the new anti-bullying jurisdiction might provoke a flood of claims, only a small number of applications have progressed to the hearing and decision stage and only one "stop bullying" order has been made.

Three applications have been dismissed on the basis that the applicant is no longer employed and therefore there is no ongoing prospect of them being bullied at work. Three applications have been dismissed on jurisdictional grounds. Although the McInnes application was ultimately dismissed on jurisdictional grounds, it is notable for the finding by the Full Bench on a special referral of the issue for determination, that a worker can rely on conduct that occurred prior to 1 January 2014 in an application for a stop bullying order.

Only three decisions so far contain an analysis of conduct alleged to constitute bullying:

• In Ms SB, the applicant alleged bullying by two of her direct reports. The applicant also alleged that a lack of support from her employer and the employer’s failure to stop and investigate gossip and innuendo amounted to bullying. The FWC held that, while the making of vexatious allegations, spreading rude or inaccurate rumours or conducting an investigation in a grossly unfair manner could amount to bullying, the facts did not support a finding that this occurred in this case. The FWC did acknowledge that management could have been more supportive of the applicant, but found that its behaviour was not unreasonable. The FWC indicated that, overall, there may have been a limited amount of behaviour that was unreasonable, however it was not satisfied that this was sufficient to create a risk to health and safety.
• In Mr Tao Sun, Mr Sun alleged that his manager altered his performance appraisal ratings, resulting in him receiving an annual bonus lower than expected. He collapsed at work and claimed that this was caused by having read an email in his manager’s electronic diary (which he was not authorised to access) regarding his feedback. The FWC found no evidence to support the allegation that Mr Tao’s manager had altered his performance ratings. In relation to the impact on Mr Tao’s bonus, the FWC noted that "unless it can be demonstrated that a discretionary bonus payment has been applied in a punitive manner" as part of a course of bullying conduct, the FWC should be cautious to consider this as workplace bullying, as it is a matter for the employer to decide, at its discretion. Mr Tao also objected to being requested to work on a project which he claimed was beyond his capabilities. The FWC rejected this claim and confirmed that the employer had engaged in reasonable management action.04/8310480_1 2
• In The Applicant v General Manager and Company C, the applicant alleged she had been bullied by the General Manager as a result of a number of the General Manager’s behaviours, including micro-managing the applicant, excluding her from meetings, undermining the applicant in front of her team, behaving in an angry and threatening way, and pointing at the applicant during a one-on-one meeting. The FWC found that on one occasion the General Manager was angry and spoke to the applicant in an aggressive tone and pointed at the applicant. However, the FWC did not find this to be unreasonable behaviour and noted that it "is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger. It was reasonable management action in all of the circumstances for the General Manger to forcefully communicate in both words and body language…" The FWC did note, however, that if that behaviour was reinforced by repeated similar behaviour, then it may be considered differently and could contribute to a finding of bullying. The other behaviours were either found not to have occurred on the facts, or to have been reasonable management action.

What are the lessons learned for employers?

It is reassuring for employers to see that the FWC has taken a practical approach to the bullying applications that have come before it to date. These decisions can give some comfort to employers that the FWC recognises an employer’s discretion to run their businesses as they see fit and acknowledges that HR and managers cannot be expected to deal with all employee issues in a perfect or ideal way, and this is not necessary to successfully defend a bullying allegation.

What is not immediately obvious from the outcomes of these decisions, however, is the cost to employers of defending anti-bullying applications. A close reading of the decisions shows the significant amount of witness evidence taken by the FWC in order to reach its decisions, which generally comes at a significant cost to employers in legal fees and management time.