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The Fair Work Commission anti-bullying jurisdiction: Has the Fair Work Commission stopped the bullies?

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Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”), the Fair Work Commission (“Commission”) has the power to make a ‘stop bullying 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”. This jurisdiction, which commenced on 1 January 2014 with widespread community support and in particular from the Commonwealth government, has been in operation for over 4 years, and in this time, it has had much lower rates of utilisation than expected. Evidently, much the same can be said for the success rates of those who have pursued a bullying application through the Commission.

To this end, the Commission’s quarterly report for the October-December 2017 quarter, shows that 149 applications were made. However, all but 12 of these were withdrawn or resolved prior to going to final determination and of the 12, all were dismissed and only 1 anti-bullying order was made. It is much the same story for the first quarter of 2018, with 186 applications made, but only 12 reaching final determination, and again all, but one, were dismissed.

The Bullying Jurisdiction  

Before examining this area of the employment relations system more closely, it is important to understand the parameters of the anti-bullying jurisdiction and how it operates. In broad terms, to eradicate bullying in the workplace, the Commission has power under the Act to make any order which it considers appropriate to prevent a worker (who must be employed) from being bullied. The Commission does not have the power to make compensatory orders (payment of a monetary amount).

In order to obtain such relief, an applicant must demonstrate that that they 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 conduct not relate to past instances of alleged bullying as the Commission has no power to exercise its discretion retrospectively. This was affirmed in Shaw v ANZ [2014] FWC 3408 where the Commission declined to make a stop bullying order after Mr Shaw’s employment was terminated on the basis that there was no conceivable risk that the bullying would continue.

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”, which falls outside the scope of the Act. In this regard, providing constructive criticism in the context of a performance appraisal to address an underperformance issue will not necessarily constitute bullying provided the feedback is 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 rational and defensible. Importantly, in the recent decision of Blagojevic v AGL Macquarie Pty Ltd [2018] FWCFB 4174, the Full Bench confirmed that the test of unreasonableness is judged objectively on the management action itself, rather than the workers’ perception of the relevant action.

The real strength of the jurisdiction is the breadth of order that can be made, and the Commission appears to be embracing this latitude. In circumstances where an applicant can demonstrate 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 from imposing creative or non-traditional solutions to prevent bullying from occurring in the workplace, including barring certain individuals from having contact with an applicant. For example, in Ari Kypuros [2017] FWC 3082, Commissioner Wilson issued an interim anti-bullying order restraining the co-owner of a tyre business and his employed nephew from communicating with or being within 10 metres of each other, noting that a separate court order for the nephew not to commit "family violence" against his uncle had done little to improve a long-standing combative workplace relationship. Similarly, in Lynette Bayly [2017] FWC 1886, the Commission granted an interim order which effectively acted as an injunction upon her employer from proceeding with a workplace investigation, which may have resulted in termination. In this regard, the Commission observed that it was appropriate in this particular circumstance to order interim relief as the employee concerned would be deprived of the ability to access the bullying jurisdiction once her employment had been terminated, and there was a real likelihood this would occur if the investigation was allowed to proceed.

Interestingly, the ambit of the bullying jurisdiction has, again, been redefined by the recent decision of McCutcheon v Fine Wine Wholesalers Pty Ltd [2018] FWC 3814 (“McCutcheon”). In McCutcheon, Deputy President Beaumont observed that the relationship and level of familiarity between colleagues may be a relevant consideration in determining whether, in fact, behaviour amounts to bullying.

In McCutcheon, the Managing Director, Ms Lawrence, and the Area Manager, Ms McCutcheon, formed a relationship, which Deputy President Beaumont noted, surpassed the ordinary limits to which co-workers themselves become acquainted. As such, the Commission established that there was a blurring of the line between the traditional relationship in place between a leader and a subordinate and was more in the nature of a relationship formed between friends.

In this regard, Ms McCutcheon claimed that Ms Lawrence’s actions, which included the following examples of alleged bullying:

  1. The spreading of untrue malicious and humiliating rumours in front of the sales team regarding her boyfriend and remarks about her appearance due to an allergic relationship, and when she “wore too much makeup” and looked like “Coco the Clown”;
  2. Advising staff to wear low cut tops to increase sales revenue;
  3. Informing Ms McCutcheon that she could not afford her wages if she did not achieve sales targets;
  4. Questioning Ms McCutcheon’s sick leave; and
  5. Causing the company’s workers’ compensation insurer not to pay Ms McCutcheon’s related benefits,

in her capacity as Managing Director, amounted to bullying.

In defence of Ms Lawrence’s action, Fine Wine Wholesalers Pty Ltd, disputed the claims. The Commission held that the only conduct that did occur were comments regarding the fact that Ms McCutcheon should be careful her boyfriend does not “break her heart” and that she preferred Ms McCutcheon have a more “natural” look. To the extent that the Commission found the conduct occurred, it found that the level of familiarity between the parties was such that the comments could not be deemed to be unreasonable behaviour constituting bullying within the meaning of the Act. In other examples where performance was an issue, the Commission relied on the legal authorities that held that “some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.”

Nevertheless, despite finding that the conduct did not amount to bullying, the Commission stressed that being well acquainted with someone in the workplace did not excuse inappropriate or unsafe conduct.

The cases that have been decided by the Commission on this matter indicate that it is difficult to predict an outcome but more often than not, final bullying orders are not made. The real issue for most employers is the costs involved in a claim and the fact that the Commission does have wide powers to make orders which may significantly affect the manner in which the employer continues to engage with its staff.

Lessons for Employers

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 and anti-bullying policies are in place and are regularly reviewed 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. Managing workplace behaviour proactively and treating every complaint of bullying seriously; and
  5. Acting in compliance with policies and procedures when a bullying complaint is received irrespective of against whom the grievance is made.

Neglecting the issue of workplace bullying may, and in most circumstances, will inevitably make matters worse, which brings the prospect of an imposed solution by the Commission, rather than one that can be agreed between an employer and employee. In this regard, bullying claims, by their very nature, are inherently risky for employers from a reputational perspective. This is all the more reason to quickly and effectively address bullying before facing a potentially public hearing where the organisation’s ‘dirty laundry’ will be on display for the world to see.

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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