Fair Work Commission hands down its first substantive decision on bullying

Commissioner Hampton, head of the Anti-bullying Panel of the Fair Work Commission recently handed down the Fair Work Commission's first substantive decision on bullying. The decision included a consideration of the term 'reasonable management action carried out in a reasonable manner', which if satisfied, is not considered to be bullying conduct.

Background

The applicant commenced employment as a Delivery Support Team Leader in mid June 2013. As part of her role, she supervised a team of Delivery Support Officers (DSOs).

The applicant lodged a bullying complaint against two DSO's who directly reported to her. Those two DSO had previously made bullying complaints against the applicant.

In August 2013, one of the DSO's made a complaint against the applicant alleging she was engaging in bullying against her. The employer investigated the DSO's complaint and found it to be unsubstantiated. The DSO who made this complaint has since left employment with the employer.

In January 2014 a second DSO also made a complaint of bullying against the applicant. This complaint was investigated by the employer and the allegations against the applicant were found, in part, to be substantiated.

Shortly after becoming aware of the most recent bullying complaint made against her by the second DSO, the applicant lodged a compliant of bullying against both the DSO's which formed the subject of these proceedings.

The applicant's claim

The applicant alleged that:

• the two DSOs made unfounded bullying complaints against her as part of a campaign to bully her as their manager;
• the employer unreasonably accepted those complaints for investigation;
• the employer failed to provide appropriate support to her after the bullying complaint by the first DSO;
• the DSOs and others were spreading rumours about her in the workplace;
• the employer failed to properly investigate false rumours about an alleged incident at a social function concerning the applicant and notify others that it had no foundation; and
• she had been humiliated as a consequence of rumours and gossip and the failure of the employer to notify others that the rumours and gossip was unfounded.

The applicant sought orders from the Fair Work Commission to:

• stop the alleged bullying conduct being undertaken by the remaining DSO;
• require compliance by the employer and others in the workplace with the employer's bullying policies; and
• monitor the workplace behaviour by the employer.

Consideration

Commissioner Hampton reviewed the definition of bullying in the Fair Work Act 2009 (Cth) (the FW Act) which defines bullying as repeated unreasonable behaviour by an individual or group of individuals directed to the applicant that creates a risk to health and safety.

Commissioner Hampton also considered whether the alleged behaviour was reasonable management action carried out in a reasonable manner and made the following findings with respect to the definition of bullying under the FW Act:

Repeated behaviour

Repeated behaviour is persistent unreasonable behaviour which may include a range of behaviours (not necessarily the same specific behaviour) over time. There is no specific number of incidents required, so long as there is more than one.

Unreasonable behaviour

Unreasonable behaviour is behaviour that a reasonable person having regard to the circumstances, may consider unreasonable and creates a risk to health and safety. The behaviour need not be the only cause of the risk provided it is a substantial cause, viewed in a common sense and practical way.

Reasonable management action in a reasonable manner

Reasonable management action in a reasonable manner is considered in context of the circumstances and knowledge of those involved at the time. The emotional state and psychological health of the worker may also be relevant in considering the circumstances.

In particular, Commissioner Hampton found a narrow approach should be adopted and said:

"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."

Further, when considering if management action was taken in a reasonable manner it may depend on the:

• action taken;
• facts and circumstances giving rise to the action;
• way in which the action impacts on the worker;
• circumstances in which the action was implemented; and
• any other relevant matters.

Finding

Commissioner Hampton found that:

• while the applicant may have viewed the complaints as a campaign against her which distressed her, the receipt of complaints by management and the conduct of investigations in response, was not unreasonable - rather it was a reasonable and prudent response;
• while in hindsight, there would have been some benefit in providing support and mentoring to the applicant after the first complaint against her, it was not unreasonable for the employer in the circumstances not to have provided it; and
• although there was an anonymous allegation associated with a workplace function, the employer investigated this allegation and found it to have no substance. The applicant was advised of this finding.

Commissioner Hampton considered that although the applicant may have preferred a full investigation and a more fulsome public exoneration, this would have created a focus and further attention upon the allegation that may well have also been unwelcome.

Commissioner Hampton also found it was reasonable for the employer, in the circumstances, not to engage an external investigator to investigate the applicant's complaints.

Finally there was insufficient evidence to find the applicant had been bullied at work within the meaning of the Act. Consequently there was no basis on which to make orders and the matter was dismissed.

Conclusion

The decision provides welcome confirmation for employers managing workplace bullying complaints that the complaints can be managed in a prudent, appropriate and most of all, common sense manner.

Importantly, an imperfect process and the benefit of hindsight do not necessarily affect the reasonableness of the management action carried out in a reasonable manner.

If you would like more information about the case or the management of bullying complaints in general, please contact National Workplace Lawyers on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.