General ProtectionsUnfair Dismissal and Bullying

“Sticks and Stones”: The Fair Work Commission Anti-Bullying Jurisdiction

Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”) the Fair Work Commission (“Commission”) has the power to make a “stop bulling order” when a worker has been bullied at work, unless the alleged bullying conduct amounts to “reasonable management action” carried out in a “reasonable manner”.

Despite being welcomed for providing greater legislative protection to workers against inappropriate workplace behaviour, the anti-bullying jurisdiction which commenced on 1 January 2014 has had much lower rates of utilisation that expected. The Commission has however delivered some key decisions which provide some clarification around its scope to address and remedy workplace bullying.

Before examining judicial developments in this area, it is important to understand the parameters of the anti-bullying jurisdiction and how it operates. Notably, the Commission can make any order that it considers appropriate to prevent a worker being bullied at work, other than compensatory orders (payment of a pecuniary amount) or an order reinstating an employee.

In order to obtain such relief, an applicant must demonstrate that that were subjected to repeatedly unreasonable behaviour by an individual or group of individuals in the workplace, and that the behaviour creates a risk to health and safety. It is also a requirement that the worker is employed and that the alleged behaviour not relate to past instances of alleged bullying. The Commission has no power to exercise its discretion retrospectively. For example, in Shaw v ANZ [2014] FWC 3408 the Commission determined that it had no jurisdiction to hear the matter and make any orders as Mr Shaw’s employment had been terminated.

The ability of employers to defend bullying claims depends in large part on whether the alleged conduct can be properly characterised as “reasonable management action carried out in a reasonable manner”. If this is the case, the conduct falls outside the scope of the anti-bullying provisions in the Act. For example, providing constructive criticism in the context of a performance appraisal, to address an underperformance issue, will not necessarily constitute bullying. However, the feedback must be given in a reasonable way. The Commission has observed that “reasonable management action” need not be perfect in order to be considered reasonable, but it ought to be rationale and defensible. Importantly, in SB [2014] FWC 2104, Commissioner Hampton confirmed that the test of unreasonableness is judged on the management action itself, rather than the workers’ perception of the action.

In circumstances where an applicant can make good allegations of bullying and show that the conduct creates a risk to health and safety, the Act is silent as to the orders by which the Commission can address the improper behaviour. In this respect, the Commission has significant latitude in terms of dealing with anti-bullying actions and, to some extent, is not legislatively constrained in its ability to impose creative solutions to prevent bullying from occurring in the workplace, including barring certain individuals from having unaccompanied contact with an applicant. Some of the orders that the Commission is able to make include:

  • directing the employer to ensure the bully not correspond with the applicant;
  • directing employees to commence or finish work at different times;
  • directing employees not to make comments to affected employees;
  • directing the employer to create or amend policies; and
  • directing an employer to conduct training.

In the recent decision of L.P [2016] FWC 763, Commissioner Hampton refused to issue an anti-bullying order against a well-known Adelaide restaurant because it implemented positive measures to tackle inappropriate workplace behaviour. In what might be an important development for this jurisdiction, however, Commissioner Hampton considered the possibility of the Commission restoring leave balances of workers who take time off due to workplace bullying. Although the question was left unanswered, Commissioner Hampton noted that the possibility of re-crediting leave would need be fully considered in the context of the Act and the National Employment Standards. As the argument was not agitated in these proceedings, it was found that it was not necessarily to decide the issue.

There are a number of steps that employers can take to ensure they are prepared to adequately address bullying claims in the workplace, and to minimise their exposure to these types of claims, including:

  1. ensuring that workplace conduct policies are in place and are regularly audited and updated;
  2. providing training workshops to both employees and managers in relation to appropriate standards of behaviour at work;
  3. conducting thorough reference checks when selecting line managers to ensure they are experienced in managing interpersonal conflicts;
  4. ensuring that line managers are appropriately trained in managing performance issues;
  5. managing workplace behaviour proactively and treating every complaint of bullying seriously; and
  6. acting in compliance with policies and procedures when a bullying complaint is received irrespective of whom the grievance is against.

Bullying claims, by their very nature, are inherently risky for employers. However, of far more concern is the ability for affected employees to commence proceedings for breach of contract, negligence or breach of work health and safety obligations, as a result of the employer failing to provide a safe system and place of work. Damage to an employer’s reputation is also a significant risk. We suggest that employers conduct an audit of their workplace culture and practices regularly to ensure that any instances of bullying, harassment or other inappropriate workplace behaviours are identified and appropriately eliminated.

If you are aware of a bullying issue in your workplace or wish to further discuss the steps that can be taken to mitigate the risks in this area, please do not hesitate to contact us for specialist advice or assistance.

This alert is not intended to constitute, and should not be treated as, legal advice.

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