Great expectations

Commentary has been rife following Israel Folau’s termination and the dismissal of a federal public servant for making anonymous tweets critical of government and opposition policies and parliamentarians. Media headlines have sensationalised the loss of free speech and labelled the decisions draconian and Orwellian and heralded warnings for employees’ use of social media.

Controversy aside, the cornerstone of the Comcare v Banerji* High Court ruling was a reasonable and clear code of conduct which set out expectations around employee conduct. In the age of prolific social media platforms, which provide anonymous individuals and sports stars with national exposure, organisations have never been more cautious about the “brand” their employees present online.

In the case of Banjeri, a public affairs officer, “she began broadcasting tweets on matters relevant to the Department, using the Twitter handle “@LaLegale”4.There were more than 9,000 such tweets, at least one of which was broadcast during the respondent’s working hours, and many of which were variously critical of the Department, other employees of the Department, departmental policies and administration, Government and Opposition immigration policies, and Government and Opposition members of Parliament.

Banjeri originally lodged an unfair dismissal claim in 2013, arguing she was unlawfully fired from the Department of Immigration and Border Protection. While this claim was dismissed she was later successful in a workers’ compensation case claiming compensation for a psychological injury as a result of the termination of her employment. In these proceedings, the Administrative Appeals Tribunal found her dismissal was unreasonable in part because it had impeded her implied right to freedom of political communication.

Comcare appealed the Administrative Appeals Tribunal’s decision to the Federal Court, however the Commonwealth Attorney-General removed the appeal to the High Court.

On 7 August 2019, the High Court unanimously allowed the appeal. The High Court specifically noted that employees were not protected by anonymity.

there is no reason to suppose that “anonymous” communications cannot fail to uphold the integrity and good reputation of the APS… as a rule of thumb, anyone who posts material online, particularly on social media websites, should assume that, at some point, his or her identity and the nature of his or her employment will be revealed.

Additionally, the Court determined that the requirements of the Public Service Act 1999 (Cth) and the Australian Public Service Code of Conduct and guidance documents did not infringe on implied freedom of political communication as their intent was to achieve an apolitical public service.

The Australian Government Solicitor’s office has published a commentary of this particular case**, highlighting implications for decision makers. This landmark ruling does not provide precedent for employers to dismiss workers for comments on social media which they simply don’t like.

The Court referred with approval to the content of various guidance documents issued by the APSC and other agencies about the proper conduct of APS employees, including guidance about the need to act consistently with the APS Values concerning an impartial and apolitical public service in the use of social media.

Instead, this recent ruling highlights key considerations for Australian businesses when developing, implementing and enforcing codes of conduct, associated policies and guidance documents. It is not enough to make a statement around the expectations of employee behaviour in a code of conduct, without careful consideration within the legislative framework and whether such expectations are reasonable. An effective code of conduct will articulate employees’ rights and obligations within the context of their employment and specify if this extends to things such as public commentary and social media use.

Further, decision-makers who are responsible for determining whether employee behaviour breach codes need to carefully consider all of the circumstances before determining if an employee’s conduct is inconsistent with the documented expectations of the organisation.

The decision also serves a reminder that any disciplinary action must be proportionate to the nature and gravity of the misconduct and the personal circumstances of the employee in question.

Workdynamic has extensive experience in developing and reviewing codes of conduct and a keen understanding of the enforcement of these types of policies. Our application of such policies in workplace investigations affords us particular insight into how best to develop, document and deliver the expectations an organisation has of its employees.

* Comcare v Banerji[2019] HCA 237 August 2019 C12/2018


The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Investigations – the importance of getting it right

The importance of procedural fairness

A recent decision by the Fair Work Commission* assessed certain inadequacies of an investigation conducted by Mooroolbark Child Care Centre following an altercation between two child care workers. Whilst the dismissal was ultimately upheld due to the seriousness of the conduct in question, the Commission noted a number of flaws with respect to the investigation process which were considered to weigh in favour of a finding of unfair dismissal.

Commissioner McKinnon said, “In some respects, the process was orthodox. An allegation was made, [the employee] was stood down on full pay, and an investigation occurred before allegations were formally put and determined.”

However, the Commission noted that whilst the employer considered the respondent’s history of domestic violence and related mental health in deciding to dismiss her, it failed to recognise the necessary causal link between one’s prior history and present employment circumstances. The employer also failed to provide the respondent with an opportunity to put her past history into context, and as such these issues could have only been fairly considered with the input of the respondent. Denying the respondent the opportunity to address this resulted in a denial of procedural fairness.

Commissioner McKinnon also noted that other matters that arose during the course of the investigation were not dealt with by the employer on an equal footing which weighed further in favour of a finding of unfair dismissal. The Commissioner stated that this “… highlights both the importance of objectivity and the difficulty for inexperienced employers in ensuring procedural fairness for employees absent specialist advice and support.

Applying the findings of the investigation

However, ensuring a procedurally fair investigation is just part of the approach for an organisation in mitigating risk. Understanding the findings of an investigation and how they should be applied within an employment law context in making decisions around disciplinary action are equally important.

A decision of the Queensland Industrial Relations Commission** had a significant financial impact on the Wide Bay Hospital and Health Service (WBHHS). Not only was Dr Gregory Coffey reinstated to his former position of District Director of Medical Services at the WBHHS but he was also awarded compensation for remuneration lost or likely to have been lost as a result of the dismissal.

Dr Coffey’s exemplary and unblemished experience spanned more than 40 years and included 5-years with the WBHHS. Dr Coffey’s performance appraisals had always been positive and his professional judgement as a medical practitioner and administrator had never been the subject of criticism. In his role with the WBHHS, Dr Coffey was responsible for the recruitment and retention of medical officers at three hospitals. However, following an independent investigation, the WBHHS terminated Dr Coffey’s employment on 28 September 2017 as Medical Director and the Chair of its Credentialing Committee for appointing Dr Jocobus Cloete, who allegedly had an identified alcohol issue, to an obstetrics position.

Despite the investigation report making no findings critical of Dr Coffey’s actions, the WBHHS dismissed Dr Coffey for reasons including that he had failed to “ensure the highest, professional and ethical standards were followed for the credentialing of Dr J Cloete“. In fact, the investigation report concluded there was “no evidence that the conduct of any WBHHS employee (excluding Dr Cloete) was deliberate or knowingly in breach of any relevant policy or procedure” and that “All witnesses impressed as cooperative and credible, and it is accepted that all witnesses were acting with the best of intentions in relation to the appointment and credentialing of Dr Cloete“.

Following the test established in Byrne v Australian Airlines Ltd, the Commission found that Dr Coffey’s “dismissal was harsh” because “it was disproportionate to the gravity of the misconduct in respect of which the employer acted” and that “the termination was unjust and unreasonable because Dr Coffey occupied no special or different position to anyone else on the Committee but appears to be singled out for special consideration for no obvious or apparent reason.

Commissioner Thompson stated, “I have carefully considered the findings to substantiate each of the three allegations, relied upon as grounds for terminating his employment on 28 September 2017 and found each of the allegations were on the evidence and material before the Commission, on the balance of probabilities, incapable of being substantiated.

*Courtney Murphy v ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre [2019] FWC 3169

**Coffey v State of Queensland (Wide Bay Hospital and Health Service) [2019] QIRC 56 (5 April 2019)

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

The 1 July Pandora’s box for Australian workplaces

A new financial year is always a busy time for many payroll and human resources teams. It’s a time when performance and commission reviews might be due, salaries can increase and award rate changes need not only to be interpreted, but also implemented. The deadline of “the first full pay period on or after 1 July 2019” is a phrase which instills fear into many Australian workforce managers.

In June this year the Fair Work Commission (FWC) published its Annual Wage Review. The Fair Work Act 2009 (Cth) requires the Commission to review the National Minimum Wage and Modern Award minimum wages each financial year. The outcome of these reviews impacts all Australians employed under an Award, and flows on to many others. The 2017-2018 review estimated that “the number of employees who have their pay set by an award is estimated to be 2.3 million or 22.7 per cent of all employees”.

Any Modern Award minimum wage increase also impacts loadings, penalties, allowances and overtime payments which are calculated with reference to the Modern Award minimum wages. Similarly each 1 July there is a change to the high-income threshold for unfair dismissal applications. The high-income threshold for unfair dismissal applications will rise on 1 July 2019 from $145,400 to $148,700.
Over the past 6 years, we have also seen 1 July as a key date in a phased increasing of the superannuation guarantee. However this year this rate remains steady at 9.5%.

Under the Modern Award system, the wages for each classification are the lowest possible wage rate an employee can be paid. This means an employer cannot pay anything less than the minimum wage outlined the Award which applies. Often organisations make a decision to pay above the minimum wage rate. However, over time this can too easily become an underpayments issue. Any increases to the award wage, loadings, penalties and allowances each year need to be taken into consideration to ensure the employee doesn’t inadvertently fall below the minimum wage.

There is no doubt that the Australian wage system can be complex. Navigating your way through the National Employment Standards, National Minimum Wage, Modern Awards, Enterprise Agreements and contracting arrangements can often be described as a Pandora’s box. We see reminders of where things go wrong in the media regularly, with big business and household names being warned recently by the Fair Work Ombudsman Sandra Parker announcing that they would be taking a tougher approach to enforcement. Just this week it’s been reported that Domino’s Pizza have been the subject of a class action accusing them of misleading and deceptive conduct which alleges that it caused franchise operators to underpay thousands of “award workers” under old, substandard agreements as opposed to the Fast Food Industry Award. It’s estimated that if successful, the class action could cost Domino’s Pizza more than $240 million, a very expensive Pandora’s box in this instance.

As specialist employment lawyers, we often see the cost to an organisation of underpayment issues, often the result of inattention or human error. And the cost isn’t limited to repayment of wages, but often incurs legal fees, sometimes fines and bad publicity. Not to mention the productivity, cultural and morale issues that often remain with the workforce affected. We work with many clients from a risk management perspective to prevent these issues from impacting their business.

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Balance for better

Workdynamic promotes gender equity in its workforce by implementing flexible working arrangements and eliminating gender pay gaps.
This International Women’s Day and every day our team maintain a gender parity mindset and support our clients to do the same. #BalanceforBetter #IWD2019

The World Bank Organisation have identified that gender equality is a critical component of economic growth and recently published Women, Business and the Law 2019: A Decade of Reform outlining how women’s employment and entrepreneurship choices are affected by legal gender discrimination. Workdynamic Director and Principal, Jane Wright, was one of the 2000 lawyers worldwide who contributed to the report.

The report collates and examines ten years of data around the economic decisions women make as they go through their working lives and is intended as an objective measure of how the regulations and laws of the World Bank Group’s 189 member countries affect women’s incentives to participate in economic activity.

There was a worldwide improvement on average towards gender equality in the last ten years, however only six countries achieve a perfect score of 100 in terms of their laws treating men and women equally among the dimensions measured.

While Australia scores 96.88 on the WBL index, we still have considerable room to improve gender equality not only in terms of legislation, but significantly our ability to meaningfully implement these laws.

Workplace policies are an important way to implement frameworks to reduce both direct and indirect discrimination and implement workplace strategies to promote gender equality. For example, the Bankwest Curtin Economic Centre and Workplace Gender Equity Agency identified in their Gender Equity Insights 2019: Breaking through the glass ceiling report that

“Flexible workplaces and paid parental leave are key to staff retention. The loss of skilled workers represents a potentially significant cost to companies, both through the loss of experience and leadership, and through the costs of recruiting and training new appointees. Flexible workplaces with paid parental leave schemes are integral to retaining female staff members during and after pregnancy.”

Should your organisation wish to be on the forefront of gender equality, Workdynamic are well positioned to assist. Not only are we recognised as experts in this area, but we ‘walk the walk’ in our day to day business.

Image source: Women, Business and the Law 2019: A Decade of Reform

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Workdynamic congratulates Kate Peterson on her appointment as Director

Kate Peterson has been promoted to the position of Director at Workdynamic Australia.  Kate’s significant contribution as Executive Counsel over the past 3 years to the firm’s specialist employment law practice has been recognised by this appointment. 

“I am delighted to be commencing as a director at Workdynamic Australia, and look forward to continuing to work with clients and colleagues to strengthen our market-leading practice and our uniquely innovative and personable culture.” – Kate Peterson

Kate provides advice and representation for clients across a range of industries, and in matters requiring sophisticated strategic judgment and exceptional technical legal skills. Her outstanding knowledge and practical experience in workforce restructuring, including the successful planning of consultation, redeployment and redundancy processes in unionised sectors have benefited many Workdynamic clients.  Kate’s technical capability and interpersonal skills make her a sought after investigator, particularly in complex and sensitive matters.  A skilled litigator with experience in the conduct of complex Federal Circuit Court litigation and as an advocate in the Fair Work Commission and Coronial Courts, Kate is also a key part of the Workdynamic litigation team.

Kate commenced with Workdynamic Australia in January 2016.  She previously practised as a Senior Associate in the Workplace Relations team at Corrs Chambers Westgarth, and prior to that as a Workplace Relations and Safety Lawyer at Clayton Utz.

Kate’s outstanding experience in this specialist practice area is also reflected in her role as an Adjunct Lecturer teaching Advanced Employment Law and Workplace Investigations to postgraduate students at the University of Sydney.

Workdynamic also takes the opportunity to congratulate Kate on the birth of her first child in January 2019.  While Kate’s promotion to Director became effective during her parental leave,  we look forward to welcoming her return later in 2019 when she will resume her role in our leadership team. Until then the Workdynamic team can be contacted through any of the other Directors.

Kathy Dalton joins Workdynamic as Director

Workdynamic is delighted to announce the opening of a Melbourne office with the appointment of Kathy Dalton as Director.
Before joining Workdynamic Australia, Kathy was an employment law partner of two leading international employment law practices in Melbourne, K&L Gates and DLA Piper.

With a team of 19 lawyers already working for clients spread across the continent, Kathy is a significant addition to the Workdynamic team. Kathy has forged a reputation for being a highly trusted, knowledgeable and practical senior practitioner in her field. Her depth and breadth of experience and leadership establishing our Melbourne office, will allow us to expand our service offering in Victoria in relation to all aspects of workplace investigations, employment, industrial and discrimination law.

Kathy has been providing strategic workplace relations and employment law advice to leading employers for over two decades. She is relied on regularly by boards and senior decision makers to advise on business critical and high stake workforce issues. An experienced workplace relations advisor and litigator, Kathy’s technical employment law knowledge and its practical application across a broad spectrum of private and public sector industries including retail, health, construction, transport, technology and sport, complements the existing team.
Kathy’s responsiveness and proven experience developing practical and commercial workplace relations strategies which protect and strengthen business operations is valued by many clients.

I’m thrilled to be joining Workdynamic to have the opportunity to help lead the growth of the firm and establish the Melbourne office. The strength and depth of Workdynamic as a specialist employment law practice offers a great platform from which to cement and grow strong client relationships. I’m very much looking forward to demonstrating the benefits of the firm to many more employers down south” – Kathy Dalton

Assumed Disability Discrimination

The NSW Civil and Administrative Tribunal recently awarded $20,000 to a Department of Family and Community Services child protection case worker who was forced to take sick leave after her manager became concerned that the employee was discussing conspiracy theories with co-workers.

The case worker spoke with co-workers about her belief in a number of government cover-ups including that some people question whether the Earth is flat, that fallen angels came to earth and breed with humans to create giants and a theory about the Large Hadron Collider “shutting down” the Earth’s atmosphere.

The manager emailed the case worker to advise she had learned of the conversations and stated, “based on these conversations I have concerns about your well-being. To ensure the agency’s duty of care to yourself, other employees and clients is upheld, I am directing you on Sick Leave, effective immediately. Due to the reported conversations I will be engaging a case manager from Human Resources to liaise with yourself and your treating practitioner to determine your fitness for work.

The case worker returned to work after seven weeks when her treating practitioner provided a report which noted her fitness to resume normal duties and stated, “…all the topics she was discussing were related to her leisure time reading and topics of interest she found in the Internet. She denied any strong beliefs attached to the topics of discussion.

The NSW Civil and Administrative Tribunal considered that:

the Anti-Discrimination Act defines ‘disability’ to include ‘a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’. We will call this kind of disability ‘mental illness’. Disability is further defined in s49A to include a disability ‘that a person is thought to have (whether or not the person in fact has the disability)’. We will call this an ‘assumed’ disability.

The Tribunal determined that the case worker had been subjected to a detriment, however considered whether the direction to take sick leave met the direct discrimination statutory test of “differential treatment”. The Tribunal stated:

According to the Department, the comparison should be made between the way [the case worker] was treated and the way a hypothetical employee who had the same conversation about conspiracy theories would have been treated. [The manager’s] evidence was that, “if any employee had made similar remarks or comments to those made by [the case worker], the response would have been the same regardless of any concerns about their mental health”. In other words, if another employee, who [the manager] did not think had a mental illness, had had the same conversations, she would have given that employee the same direction. With respect, that reasoning is not logical when the disability is an assumed mental illness. Inevitably [the manager] would have assumed that another employee who had animated conversations about conspiracy theories would also have had a mental illness.

The problem in this case is not with the Department’s submissions but with the way the differential treatment test is drafted. Where the disability is an assumed disability, and the person does not actually have that disability, the differential treatment element of direct discrimination does not reveal the true basis for the direction.”

The Tribunal further determined:

“We are satisfied that one of the true or genuine bases or the real reason for making the direction was that, based on the conspiracy theory conversations, [the manager] thought [the case worker] had a mental illness.

It follows that the Department has directly discriminated against [the case worker] on the ground of assumed mental illness.”

The Tribunal did not consider that it was appropriate for the Department to publish an apology for giving the case worker this direction. However, the case worker was awarded damages in the amount of $20,000.

Reminders to employers

Employers should consider the context of this decision when dealing with ill or injured employees or employees who are assumed to be ill or injured. In this instance, the direction to take sick leave without any assertion from the employee that she was unwell was determined to be unlawful.


The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Redundancy pay with earlier casual service

Wondering about the relevance of earlier casual service to redundancy pay?

In a decision on 30 July 2018 the FWC Full Bench has provided some welcome clarification on when an employer will need to include previous casual service for employees who later become entitled to redundancy pay.

The appeal by the employer, Unilever, concerned the question of whether or not the relevant enterprise agreement (EA) required permanent employees who had previously worked on an almost continuous pattern as casual and seasonal workers before transitioning to permanent work were due redundancy pay calculated by reference to the entire period of service.

The employer was successful in arguing that a redundancy pay entitlement under this particular EA need only be calculated by reference to service as a permanent employee.  In this sense, it is an outcome that applies only in that workplace and turned on the particular aspects of the EA in question, including factors such as the heading of the relevant section of the EA (which stated it did not apply to casual or seasonal employees) and reference to ‘years’ of service (which did not align with repeated separate casual/seasonal engagements).

In interpreting the Unilever agreement, the Full Bench was asked to consider the idea that casuals might be covered by the relevant terms about redundancy in respect of service but not payment.  In dealing with this, the Full Bench observed the conceptual boundary between redundancy and the nature of casual/seasonal work, which inherently entails the possibility of cessation by the employer choosing not to re-engage the employee. In short, if an employer has the choice not to re-engage this type of employee, when would a redundancy ever arise?  There would be no need.

However, of broader relevance are the Full Bench’s general comments on earlier casual service and the error made at first instance when dealing with the Unilever dispute.  Relevantly:

  • Since the 2016 FWC Full Bench decision in Donau (which analysed a similar claim under a differently worded enterprise agreement), there has been an understanding that redundancy pay under the National Employment Standards needs to include previous casual service for a permanent employee later made redundant.  For example, the thinking was that an employee working ‘contiguous’ (ie, repeated and close) casual engagements for 2 years before working on a permanent basis for 8 years would be entitled to NES redundancy based on 10 years’ service (not 8).
  • In the present case, a different Full Bench has confirmed that Donau turned on its own facts and should not be understood as being generally applicable to considering “service” under the Fair Work Act (as it is defined in section 22) or to service in all enterprise agreements providing for redundancy.  This means the thinking above should now be doubted.
Lessons for employers
  1. While redundancy benefits in enterprise agreements are commonly established by reference to continuous service (ie permanent service only), this is not always the case. You should not automatically assume casual service is excluded and look carefully at the particular language of the EA.
  2. For employees covered by the NES, it is no longer clear that earlier casual service has to be included when calculating the redundancy pay for a now-permanent employee.


This article was written by Kate Peterson, Executive Counsel at Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.

Round up of bullying cases

The new bullying laws have been in place for just over 6 months, and with that in mind, this article summarises the key decisions that have been handed down so far. The cases show that so far, the Commission has been reluctant to characterise behaviour as bullying, and has interpreted the concept of ‘reasonable management action’ in a relatively broad manner.

Whilst the figures for the 4th quarter of 2014 are not yet available, as of 31 March 2014, 151 applications for anti-bullying orders had been made to the Commission, of which only 8 were finalised as a result of a decision of the Commission.

First substantive anti-bullying orders made

The first substantive anti-bullying orders were made on 24 March 2014 (Applicant v Respondent, PR548852). Whilst the decision provided no information regarding the circumstances which lead to the orders, the decision indicated that the Commission is willing to make broad-reaching orders in order to prevent bullying from occurring. In that case, the alleged bully was ordered to:

  • complete any exercise at the employer’s premises before 8.00a.m;
  • have no contact with the applicant alone;
  • make no comment about the applicant’s clothes or appearance;
  • not send any emails or texts to the applicant except in emergency circumstances; and
  • not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

The applicant was also ordered not to arrive at work before 8:15am.

Conduct prior to 1 January 2014 can be considered bullying

In Ms Kathleen McInnes [2014] FWCFB 1440, the employer respondent raised a jurisdictional objection on the basis that the applicant was complaining of conduct that occurred prior to the commencement of the new bullying laws on 1 January 2014. In particular, the applicant was complaining about conduct that occurred from 2007 until 2013, and no conduct after that time.

A Full Bench of the Commission rejected the jurisdictional obligation, and held that allowing consideration of pre-1 January 2014 conduct would not give the laws retrospective operation. This is because the anti-bullying provisions do not attach any liability to past events and are instead about preventing prospective conduct. In other words, the provisions are not directed at punishing past bullying behaviour or compensating the victims of such behaviour, and it is therefore permissible to consider conduct that pre-dates the laws.

Guidance on the concepts of ‘reasonable management action’ and ‘reasonable behaviour’

In Ms SB [2014] FWC 2104, the Commission handed down its first substantive bullying decision and provided useful guidance as to the meaning of ‘reasonable management action’ and the concept of ‘reasonable behaviour’ in connection with the new jurisdiction.


The applicant claimed that she had been bullied by two subordinate employees – Ms CC (a current employee) and Ms NP (a former employee). The applicant complained that these employees had filed false complaints of bullying against her, spread malicious rumours about her and engaged in other harassing and humiliating conduct.

Ms NP initially made a bullying complaint against the applicant, which the employer investigated and found to be unsubstantiated. Ms NP subsequently left her employment. After the applicant had lodged her application with the Commission, Ms CC made a bullying complaint against the applicant. The employer engaged an external investigator to investigate the complaints by Ms CC and the applicant, which found that the complaints against the applicant were justified in part, whereas the complaints by the applicant were not substantiated.

Whilst the employer was not named as a respondent to the proceedings, the applicant also raised concerns about the conduct of her immediate manager and HR staff. She argued that it was unreasonable for the employer to accept and investigate the complaints against her, and that once Ms NP’s complaint had been found to be unsubstantiated and that the employer failed to take adequate action to prevent further complaints from being made again. The employer was also accused of failing to support the applicant when she was the target of malicious rumours, and had failed to notify employees as to the outcome of the complaints which resulted in rumours and gossip.

Unreasonable behaviour

The Commission made the following observations in relation to concept of unreasonable behaviour:

  • The requirement that conduct be repeated can refer to a range of behaviours over time. There is no specific number of incidents required, provided that there is more than one occurrence, and it is not necessary that the same specific behaviour is repeated.
  • ‘Unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. In other words, the assessment of the behaviour is an objective test having regard to all of the relevant circumstances applying at the time.
  • There must be a causal link between the behaviour and the risk to health and safety. The behaviour does not have to be the only cause of the risk, and it is sufficient if it was a substantial cause of the risk viewed in a common sense and practical way.
  • A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. Risk means the exposure to the chance of injury or loss – and it must be real and not simply conceptual.

Reasonable management action

The Commission also stated the following in relation to the concept of ‘reasonable management action’:

  • ‘Reasonable management action’ should be given a wide meaning and covers everyday actions to effectively direct and control the way in which work is carried out.
  • To determine whether management action is reasonable, it is necessary to undertake an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Some of these considerations may include:
  • the circumstances that led to and created the need for the management action to be taken;
  • the circumstances while the management action was being taken; and
  • the consequences that flowed from the management action.
  • It may also be relevant to consider the specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker.
  • The question of whether the management action was carried out in a ‘reasonable manner’ is an objective test. It will depend on factual matters including the action, the facts and circumstances giving rise to the requirement for action and the way in which the action impacts upon the worker and the circumstances in which the action was implemented.

The Commission at [51] stated:

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’. In general terms this is likely to mean that:

  • management actions do not need to be perfect or ideal to be considered reasonable;
  • a course of action may still be ‘reasonable action’ even if particular steps are not;
  • to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
  • any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
  • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

The Commission held that whilst some of the behaviour alleged was bordering on unreasonable, it did not fall within the scope of bullying behaviour as defined in the Act. In particular, the Commission found that:

  • The employer did not act unreasonably by receiving and investigating the complaints, and this was in fact the only reasonable and prudent response.
  • Whilst the making of deliberately false or misleading allegations could be found to be unreasonable, there was no evidence that this was the case here.
  • Whilst the employer could have been more proactive in ensuring support was provided to the applicant after the allegations by Ms NP were not found to be substantiated, its failure to insist that she attend mentoring and management training were not unreasonable given that at the time, the applicant had stated that she did not see the value of this support.
  • It was not unreasonable for the employer to engage an external person to investigate the applicant’s complaints against CC.

Performance appraisals, bonus payments and bullying

In Mr Tao Sun [2014] FWC 3839, Mr Sun argued that he had been bullied as a consequence of the following conduct:

  • Following a performance review where he received a rating of ‘Meets Requirements’, Mr Sun alleged that Mr A (his Manager once removed) had subsequently changed his performance appraisals which resulted in Mr Sun receiving a lower annual bonus than he had expected (First Complaint).
  • Mr A subsequently told Mr Sun that he could allocate employees to undertake tasks irrespective of whether they are within the employees’ skills or position description, and required Mr Sun to perform a task which he considered to be beyond his skills and capabilities (Second Complaint).

Mr Sun’s evidence in support of the First Complaint was the fact that his bonus was lower than he had expected. He also relied on an email from Mr A to his direct manager which was critical of Mr Sun’s performance. Mr Sun had located this email after accessing Mr A’s electronic diary (without permission).

The Commission found that there was no evidence to support the First Complaint. In particular, the bonus in question was discretionary and was a matter for the employer’s judgment. The Commission expressed caution at the idea of considering a discretionary bonus to be a form of workplace bullying.

Further, the email was not sent at the time that Mr Sun received his bonus, and was accessed without Mr A’s permission. The fact that an employee believes that they have been bullied at work does not mean that their normal duties and responsibility no longer apply or that they have immunity from observing policies and procedures.

In relation to the Second Complaint, the Commission disagreed that the task in question fell outside of Mr Sun’s skill level or position description, and held that Mr A’s actions were reasonable and carried out in a reasonable manner. The Commission stated that it was ‘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’.

No repeated incidents of unreasonable behaviour

In The Applicant v General Manager and Company C [2014] FWC 3940, the Applicant alleged bullying conduct by the General Manager of the company.
The Applicant pointed a range of behaviours which she argued were unreasonable, including aggressive tone and behaviour, questioning of her decisions, undermining her by going directly to members of her team, belittling behaviour, micro-management and so on.

The Commission found that there was only once instance of unreasonable behaviour by the General Manager, being his failure to properly respond to a request for a support person at future meetings. Because there was no repeated incidents of unreasonable behaviour, the Commission did not make an orders in respect of bullying.


The best defence against exposure to a bullying claim is for employers to implement a clear anti-bullying policy and resolution procedure and to ensure that managers and staff receive training in relation to their obligations. It is also important to investigate complaints in a prompt and impartial manner, having regard to the requirements of procedural fairness.