29 May 2014

Workplace bullying and the reasonable response

by Michael Byrnes

The Fair Work Commission's decision sensibly considers the reasonableness of an employer's response to complaints of bullying.

Employers have been keenly waiting for the first substantive anti-bullying decision by the Fair Work Commission, and the Commission has now obliged (Ms SB [2014] FWC 2014).

The decision should give them some comfort, as it indicates the approach that the Fair Work Commission is likely to adopt in considering the merits of a bullying application – an approach that will sensibly consider the reasonableness of an employer's response to complaints of bullying.

Rumours, gossip, and complaints – a conspiracy of bullies?

Interestingly, this case involved an application by a managerial employee alleging that she was bullied by employees reporting to her, and not the more common complaint of employees alleging bullying by their managers. As the application involved persons who continue to work together, names and identities were withheld.

Ms SB joined the employer in mid-June 2013 as a Delivery Support Team Leader, with responsibility for managing a team of Delivery Support Officers, including CC and NP.

In August 2013, NP complained to the employer that Ms SB had bullied her. Following an internal investigation, that complaint was found to be unsubstantiated.

Some months later, CC made a similar complaint, which the employer found was partially substantiated, but not to warrant disciplinary action against Ms SB.

Ms SB then made a complaint against CC, alleging that CC had, amongst other things:

  • made a malicious and vexatious complaint with the object of tarnishing Ms SB's reputation; and
  • CC and NP had colluded to spread rumours and gossip about Ms SB in the workplace.

The employer engaged an external law firm to investigate and advise upon Ms SB's complaint. The law firm determined that disciplinary action against CC was not justified.

Ms SB alleged that the employer's human resources staff had failed to reasonably respond to her complaint, which also amounted to bullying. The external investigation was, she asserted, an inadequate response.

Ms SB then developed a medical condition and at the time of hearing, was on a return to work arrangement as part of an accepted workers' compensation claim.

She made an application under section 789FD of the Fair Work Act 2009 (Cth) for orders:

  • to stop the alleged conduct by CC;
  • to ensure the employer and others with the workplace complied with the employer's bullying policies; and
  • the employer monitored workplace behaviour.

Bullying under the Fair Work Act

Workplace bullying is defined as essentially, "repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety" (section 789FD of the Act). There is an exemption for reasonable management action.

Commissioner Hampton's made some useful comments on each element:

  • Repeatedly: There is no set number of times that the bullying conduct need occur (although it must occur more than once);
  • Unreasonable: The test for unreasonableness is objective and is assessed from the point of a "reasonable person, having regard to the circumstances";
  • Risk to health and safety: This implies that only a possibility of danger needs to be shown, not an actual danger to health and safety.

Moreover, the Commissioner suggested that, in most cases, a finding that unreasonable conduct had occurred would preclude a finding in favour of "reasonable management action".

The actions were not unreasonable

Commissioner Hampton found that the processes in the workplace were not perfect and better communication would assist both the employer and employees alike, but none of the actions could be considered "unreasonable". As a result, he could not find that that bullying had occurred.

Certainly, making false, slanderous and mischievous allegations against a fellow employee could potentially amount to unreasonable conduct and workplace bullying, but the mere fact that a complaint is found to be unsubstantiated does not necessarily mean the complaint was false or vexatious.

The evidence also failed to establish the existence of a conspiracy against Ms SB. Although there was some degree of duplication between the complaints made by CC and NP, this was unavoidable as CC and NP worked in the same workplace and were making complaints against the same manager.

The rumours, gossip, and alleged victimisation and exclusion were unfortunate one-off incidents which reflected the culture of the workforce, but did not objectively establish workplace bullying.

Moreover, the employer's response to Ms SB's complaint was not unreasonable conduct. The course adopted – engaging an external investigator – was eminently reasonable and appropriate.

Lessons for employers

Irrespective of how an individual feels or whether the impact of conduct genuinely causes angst or distress, there are some threshold requirements which any bullying application needs to satisfy.

Commissioner Hampton's decision is a clear signal that the Commission will assess the alleged conduct objectively against the legislative requirements.

As well as keeping abreast of developments in this still nascent jurisdiction, employers should ensure they have an effective bullying policy which not only enables employees to make bullying complaints but also ensures the employer's responses are reasonable, fair and lawful. In particular their policies should ensure:

  • complaints are properly investigated; and
  • appropriate outcomes are determined and implemented.

 Thanks to Sadaat Cheema for his contributions to this article.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.