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.

Background

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.

Findings
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.

 

This article was written by Lauren Barel, Director and Principal of 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.