In 2014, the Australia Government responded to a report: Workplace Bullying “We just want it to stop”[1] by amending the Fair Work Act 2009 (Cth) (“FW Act”) and establishing an anti-bullying jurisdiction under the auspices of the Fair Work Commission (“FWC”). This allowed a worker who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop bullying.[2]
If only it were that simple.
Prior to the introduction of Part 6-4B of the FW Act, bullying behaviour was addressed in a roundabout manner within certain existing forums and/or through certain claims. For example:
- Workers compensation.
- Discrimination and sexual harassment.
- Adverse action.
- Unfair dismissal.
- Work health and safety prosecutions.
- Criminal proceedings.
However, enlivening these jurisdictions was, and is dependent on the nature and the consequences of the alleged bullying. They require pre-conditions to be fulfilled other than the mere existence of bullying, such as the existence of a personal injury, a prohibited attribute (sex, race, religion, etc.) being the basis for the bullying.
So, Part 6-4B of the FW Act was born on 1 January 2014; a dedicated regime to specifically address bullying in the workplace. As it is now over four years into its implementation and development, we can now evaluate the impact it has had in practice.
When is a Worker Bullied at Work?
Under the FW Act, bullying at work occurs, if:
- an individual or group of individuals (not only workers)
- repeatedly[3]
- behaves unreasonably towards
- a worker[4] or group that includes the worker; and
- that behaviour creates a risk to health and safety[5]
- in a constitutionally-covered business
- while the worker is at work.[6]
Bullying at work is not:
- Reasonable management action
- Carried out in a reasonable manner.[7]
Whether the behaviour is unreasonable is to be determined objectively, that is, what a reasonable person in the circumstances would consider unreasonable[8] such as behaviour that is victimising, humiliating, intimidating or threatening.[9]
As the development of the law regarding each of the above elements is too expansive to cover in one session, in today’s seminar we are going to concentrate on what constitutes bullying at work (what is ticked). In another seminar we will look at what is reasonable management action carried out in a reasonable manner.
Who is Covered by the Fair Work Bullying Jurisdiction
State Government employees are not covered by the bullying jurisdiction.[10]
A person is covered by the anti-bullying laws if:
- they are a worker as defined by the Work Health and Safety Act 2011 (Cth)[11](“WHSA”)
- they are not a member of the Defence Force[12]
- they work in a constitutionally- covered business[13]
(i) Worker
Pursuant to the WHSA, a worker is a person, who carries out work in any capacity for a person including a business or undertaking, including:
- an employee
- a contractor or subcontractor
- an employee of a contractor or subcontractor
- an employee of a labour hire company who has been assigned to work in the person’s business or undertaking
- an outworker
- an apprentice or trainee
- a student gaining work experience
- a volunteer – except a person volunteering with a wholly volunteer association with no employees (whether incorporated or not)
(ii) Constitutionally-covered business
A constitutionally-covered business[14] is a person (which includes a company) conducting a business or undertaking[15] which is:
- a constitutional corporation
- the Commonwealth
- a Commonwealth Authority,
- a body corporate incorporated in a Territory, or
- the business or undertaking is conducted principally in a Territory or Commonwealth place.
(iii) Exclusions
There are exclusions to the definition of business or undertaking which are:
- An elected member of a local authority (acting in that capacity)[16], and
- A wholly volunteer association that does not employ anyone (whether incorporated or not)[17].
(iv) Constitutional Corporation
A constitutional corporation is a corporation to which paragraph 51(xx) of the Constitution applies[18]. The Australian Constitution defines a constitutional corporation as “Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth.
The FWC held in the decision of Gardner v Milka-Ware International Ltd [2010] that the FWA applied to the dismissal of an employee in circumstances where the employer company was formed in New Zealand but the employee performed work in Australia.
A corporation will be a trading corporation if the trading engaged in is a sufficiently significant proportion of its overall activities even if it was not originally formed to trade. In the decisions of Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (No 2) (2002) 120 FCR 191 it was held that the RSPCA, a charitable organisation, was a trading corporation on the basis that it earned substantial income from trading activities. It did not matter that the income was used for charitable purposes rather than creating a profit.
The Australian Red Cross and the Royal Prince Alfred Hospital were held to be a trading corporation on the basis that they both generated substantial income from trading activities even though that income was only a minority proportion of total income. The motivation for which that trading income was earned was not relevant (E v Australian Red Cross Society (1991) 27 FCR 310).
In Hardeman v Childrens Medical Research Institute (2007) 166 IR 196 the respondent, a charitable organisation, was found not to be a trading corporation as the activities it engaged in were insubstantial and peripheral to the central activity of medical research.
Claims
An applicant can bring a claim not only against the employer, but also name the individual or group of individuals who they allege to have engaged in bullying at work. In most cases, named individuals include managers or supervisors.
Having a genuine basis for taking management action, such as implementing a performance improvement program, is not sufficient to fall outside the scope of the legislation; the management action still needs to be carried out in a reasonable manner.
We won’t extensively set out the case law because that is a blog for another day. It is sufficient for the purposes of this paper to say that an applicant is required to establish each of the above elements in order for the FWC to be satisfied that bullying occurred. This goes some way to explaining why few applicants have succeeded, from the handful that actually proceed to arbitration hearing.
For more information, the FWC publishes the Anti-Bullying Benchbook which thoroughly details the consideration of the definition of bullying at work. It can be found on the FWC website.[19]
What Stop Bullying Orders Can Be Made?
Where the FWC is satisfied that the worker has been bullied at work and there is a risk that such bullying will continue, the FWC may make any orders it considers appropriate other than payment of money to prevent the worker from being bullied at work.[20]
It is essential therefore that the applicant is an employee for an application to be of any utility.
The FWC’s discretion is broad as to what “appropriate orders” it can make, so long as those orders do not include an award of compensation. It is not limited to an order that the bullying “stop”.
By way of example, in Applicant v Respondent[21], Senior Deputy President Drake made the following consent orders:
The employee, the subject of the application:
- Shall complete any exercise at the employer’s premises before 8.00a.m.
- Shall have no contact with the applicant alone.
- Shall make no comment about the applicant’s clothes or appearance.
- Shall not send any emails or texts to the applicant except in emergency circumstances.
- Shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.
Orders to be followed by the employee, the applicant:
- The applicant shall not arrive at work before 8.15 a.m.
Notable Cases
Board Members are “Workers” Too
Organisations should be on alert of heated discussions in the Board Room as a recent decision of the FWC found that a Chairperson was a worker for the purposes of the anti-bullying jurisdiction.
In the Application by Trevor Yawariki Adamson[22], Mr Adamson, in the role of Chairperson made various allegations of bullying against another board member and the General Manager of APY Inc. A jurisdictional objection was raised as the respondents argued that the position of Chairperson did not fit within the definition of worker as set out in s 7(1) of the Work Health and Safety Act 2011 (Cth) (“WHS Act”).
It was determined that the activities and duties of Mr Adamson represented “work” carried out for the organisation and the nature of the role such as that the Chairperson could be directed to act for and on behalf of the Executive Board by resolution, Mr Adamson could not make substantial decisions with regarding the employees within the organisation without resolutions by the Executive Board and Mr Adamson received remuneration and expense payments in the role as Chairperson.
Commissioner Hampton noted that Mr Adamson may not have been a “worker” in the more traditional sense and did not fit within the categories set out in the WHS Act. However, it was determined that a broad interpretation should be adopted when considering the term “worker”.
There can be an ongoing risk to health and safety even if the bully is no longer employed
The application of CF and NW[23] was the first occasion that the FWC issued stop bullying orders after a contested hearing. Two female employees of a real estate company complained that a property manager engaged in bullying behaviours against them including belittling conduct, swearing and yelling and use of otherwise inappropriate language, micromanagement, undermining and interfering with the applicants’ work, physically intimidating them including slamming of objects on desks, and making threats of violence.
In response to the complaint, the property manager resigned and was employed by a related company that had ongoing contact with the previous employer.
Commissioner Hampton substantiated the alleged conduct and found that there was a material risk of further bullying in the workplace by virtue of the ongoing interaction between the businesses.
Repeated behaviour/s – the conduct must be more than a single occurrence
As indicated above, bullying under the FWA requires that unreasonable behaviour/s be repeated.
In Singh[24] a contract worker at Coca Cola reported that he had been physically and verbally assaulted by another worker. The workers were separated and there was a change in the roster. There were no further incidents.
Although Commissioner Hampton found that the behaviour was unreasonable the complaint was dismissed as “… for the behaviour to be ‘repeated unreasonable behaviour’ it cannot be a single occurrence. The definition implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. … The unreasonable behaviour must however be repeated.”
In Hammon v Metricon Homes[25], Commissioner Roe did accept certain conduct as having been substantiated and inappropriate (although the more serious alleged conduct was not substantiated), including the applicant being called a ‘lackey,’ a photograph of the applicants head being placed on a poster of a dwarf and pinned up on a board, a supervisor suggesting the applicant’s pay be stopped. However, it was determined that each of these established actions involved one-off conduct by different individuals not acting in concert. The unreasonable conduct had not been repeated by those individuals.
“Unreasonable Behaviour” – Is Gossip Girl a Bully? XOXO
In the Application by Page[26], Ms Page, an employee of a stall holder at the Fremantle Markets sought orders against the wife of another stall holder, Ms Latham, and the caretaker of the markets. Ms Pages allegations against Ms Latham included that she stared at her ‘with a hostile look’, refused to say hello to her, told her on one occasion to “get f***ed” and told other stall holders false rumours about Ms Page which caused others to point and laugh at her.
Commissioner Cloghan declined to make any orders but did make some interesting comments on the state of the feud between Ms Page and Ms Latham at paragraphs 49 to 53 of his decision:
Ms Page’s challenge is to recognise and accept the fact that Ms Latham no longer wants to respond to her “hellos” or “good mornings”. Ms Latham has set the boundary for her relationship with Ms Page and it is one of non-commitment. Trying to reformulate the relationship into anything else, in my view, would be a waste of time and effort by Ms Page.
Having set the boundary, Ms Latham’s challenge is to leave it at that. While I am not concluding that she did or did not tell Ms Page to “get fu**ed”, if she does engage in such conduct, it departs from normal social interaction in the workplace and fall within the definition of bullying if repetitive. Such conduct is a clear sign that Ms Latham is pursuing an interaction well beyond just wanting to be left alone. This also goes for criticism/gossip with other stall holders at Fremantle Markets. Scurrilous denigration of a worker in the workplace would certainly fall within the boundary of bullying.
In conclusion, I turn to two matters. Ms Latham concedes that she stares at Ms Page with a hostile look. If, as Ms Latham states she wants to be left alone, I suggest she desist from such a practice. Ms Latham should get on with running the business.
Finally, it appears that the enmity between both parties is well known to the management of Fremantle Markets.
Hugh Mackay once described work as “occupational therapy”. I suggest that the management of Fremantle Markets consider, and implement, some therapeutic policies to assist in their expectations of how workers on stalls relate to each other in the Market.
The need for ongoing risk – is termination/dismissal fatal to an application?
In order for the FWC to make a stop bullying order, it must be satisfied that the worker is at risk of further bullying in the future. There is no risk if the employment is no longer on foot or if the worker does not intend to return to work duties in the near future.[27]
In Obatoki v Mallee Track Health & Community Services the Full Bench (Vice President Catanzariti, Deputy President Smith and Commissioner Blair) found:[28]
“… the power to make such orders will only be enlivened once the two limbs of s 789FF(1) have been satisfied, that is, that the worker making the application has been bullied at work by an individual or group of individuals: and that there is a risk that the same worker will be continued to be bullied at work by the individual or group. Given that the second limb was not satisfied in this matter, the Deputy President did not have the power to make any of the types of orders contemplated by s 789FF.”
Any employers looking to dismiss an employee who has threatened to bring, or has brought, a bullying application even with a genuine basis to do so ought be warned – they may find themselves at a wrong end of a general protections claim for taking adverse action against an employee who has asserted a workplace right.[29] This will be addressed in a subsequent seminar.
It is not an uncommon situation that when an employee is presented with allegations of misconduct or inappropriate behaviour, they make allegations of a similar nature against another employee which is often their supervisor or manager. Until recently, the FWC had not interfered with an employer’s management prerogative to investigate alleged misconduct and discipline its employees.
However in an application by Lynette Bayly,[30] Commissioner Hampton, made interim orders such that Bendigo TAFE and the three named individuals (the Chief Executive Officer, Chief Operating Officer and the Chief Organisational Capability Officer), could not to take steps to finalise an investigation of Ms Bayly or take steps to impose any action against Ms Bayly including terminating her employment until the application for an order to stop bullying had been determined, or the FWC ordered otherwise.
In making the orders, Commissioner Hampton placed significant weight on the there being a very real prospect that Ms Bayly’s employment would be terminated if the investigation was finalised, depriving her of the ability to have her stop bullying application heard. The Commissioner did note however that the FWC was unlikely to make similar interim orders where a disciplinary process is complained of within the application for stop bullying orders without any further evidence.
The need for ongoing risk – FWC gives employers a second chance to get it right
In the Application by Willis[31], an employee brought an application for an order to stop bullying against his employer and two managers. At the preliminary jurisdictional hearing, Commissioner Lewin criticised the employer’s investigation for matters including the lack of forewarning to the employee, abrupt and threatening conduct and the confusion between issues of performance management and discipline.
Some months later at the substantive hearing it was shown that all subsequent conduct by the employer had been reasonable and in stark contrast to its previous conduct. The employer had withdrawn the initial disciplinary notice, the two managers previously involved had no further involvement in the process, and the complaint had been considered by senior management. The Commissioner concluded that there was no risk of further bullying and therefore no basis for an order to be made.
Risk to health and safety
It is also a common occurrence for applications for stop bullying orders to overlap with a workers compensation claim. This more readily establishes that there may be a risk to health and safety caused by the alleged bullying behaviour. The employer must therefore be very cautious if an employee who has made a workers compensation claim where liability has been accepted by the insurer also seeks a stop bullying orders in relation to the same conduct that he/she says caused the workers compensation injury.
Employers need to look closely at the alleged repeated unreasonable conduct, as sometimes what is alleged may not be sufficient to establish a real risk to health and safety.
In Re Ms SB,[32] the Commissioner concluded that the limited actions by individuals found to have been substantiated did not create a sufficient risk:
“Some of the behaviour as I have found was bordering upon unreasonable but not such as to fall within the scope of bullying behaviour as defined by the Act. In particular, I cannot be satisfied, based upon the evidence before the Commission, that the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to health and safety.”
Bullying by ‘Un-friending’?
In the Application by Roberts,[33] the FWC found that a real estate agent had been subjected to bullying by the office administrator. The FWC substantiated a range of unreasonable behaviours including:
- Having administrative work on her listings deliberately delayed;
- Referring one of her clients to a collection agency although instalment payments were agreed to;
- Spoken to in an aggressive and rude manner;
- Being belittled and spoken to in a condescending manner;
- Being ignored and treated less favourably; and
- Being “de-friended” on Facebook.
While there was much more hype placed on the last aspect of the substantiated bullying, it was made clear it formed one factor in a pattern of behaviours which together were found to be unreasonable. It is therefore critical for employers to understand and look at alleged patterns of conduct as a whole even where matters might traditionally be considered outside the scope of work, such as use of social media platforms.
Conclusion
Many bullying applications that have been commenced however, over four years only a small number of applications have resulted in formal orders being made by the FWC.[34]
This may be as a result of the successful early resolution of complaints but our experience with the jurisdiction indicates to us that it is reflective of it being a minefield for applicants; there is no monetary compensation or real prospect of obtaining an award of costs and the legal issues around the interpretation of the legislation and evidentiary requirements to prove all elements of bullying are complex. Clearly this was not what was intended by the drafters of the legislation.
The FWC continues to confirm that it will not involve itself in resolving general workplace grievances or mere personality conflicts. As a result the creation of the jurisdiction has not opened the floodgates, despite the forecast for this to occur by the Gillard Government. Nevertheless, the process when invoked consumes considerable time and energy for all involved. As a result, in a no-compensation and no-costs jurisdiction, good human resources and legal strategy is important to avoid the unnecessary diversion of resources within a business.
Key Takeaways
- Employers are legally obliged to ensure the safety of their workers at work.
- Employers must have a workplace bullying policy, a complaints handling/dispute resolution policy and a disciplinary policy. Even more importantly, all workers need to be trained in the policies. Each policy and procedure needs to be tailored to the specific organisation and workforce and needs to be clear but flexible to address the business’ needs.
- Complaints should be dealt with promptly and not ignored. Complaints should be taken seriously, investigated promptly, and any appropriate action taken following an outcome.
- All employees want to feel heard and respected. Therefore, it is as much about considering the delivery of the message as it is about the content of the message itself. This means proper training for all employees and in particular managers who are delivering difficult messages to staff.
So, what do you think – is the anti-bullying jurisdiction of the Fair Work Commission a roaring lion or a toothless tiger?
Some extra reading for you:
[1] House of Representatives Standing Committee on Education and Employment, October 2012.
[2] Fair Work Act 2009 (Cth) s 789FC.
[3] Re Ms SB [2014] FWC 2104 [41].
[4] Fair Work Act 2009 (Cth) s 789FC(2); see further Work Health Safety Act 2011 (Cth) s 7(1).
[5] Re Ms SB [2014] FWC 2104 [44].
[6] Bowker and Others v DP World Melbourne Limited T/A DP World and Others [2014] FWCFB 9227. It was found that the phrase “at work” was not limited to physical presence in the workplace.
[7] Fair Work Act 2009 (Cth) s 789FD; Re Ms SB [2014] FWC 2104.
[8] Re Ms SB [2014] FWC 2104 [43].
[9] House of Representatives Standing Committee on Education and Employment Report, Workplace bullying “We just want it to stop”.
[10] Re A.B. [2014] FWC 6723.
[11] Fair Work Act 2009 (Cth) s 789FC(2)
[12] Fair Work Act 2009 (Cth) s 789FC(2)
[13] Fair Work Act 2009 (Cth) s 789FD(1)(a)
[14] A business is usually an enterprise operated with a goal to make a profit, and have a degree of organisation, system and community.
[15] An undertaking usually has “elements of organisation and system, but not necessarily profit-making or commercial in nature
[16] WHSA s.5(5)
[17] WHSA s.5(7)
[18] Fair Work Act 2009 (Cth) s 12.
[19] https://www.fwc.gov.au/documents/benchbookresources/anti-bullying/anti-bullying-benchbook.pdf
[20] Fair Work Act 2009 (Cth) s 789FF.
[21] Orders made 24 March 2014 in Matter AB2014/1052, PR548852.
[22] [2017] FWC 1976.
[23] [2015] FWC 5272.
[24] [2015] FWC 5850.
[25] [2015] FWC 5565. This decision was appealed to the Full Bench however permission to appeal was not granted and the application to appeal was dismissed.
[26] [2015] FWC 5955.
[27] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank and Another [2014] FWC 3408; Ravi v Baker IDI Heart and Diabetes Institute Holdings Limited and Others [3014] FWC 7507; Application by G.C. [2014] FWC 6988; Hayward v Department of the Environment and Others [2014] FWC 9444; Application by P.K. [2015] FWC 562; Application by Jackson [2015] FWC 402.
[28] [2015] FWCFB 1661; 249 IR 135.
[29] See Fair Work Act 2009 (Cth) ss 340 and 341.
[30] [2017] FWC 1886.
[31] [2015] FWC 1131; [2015] FWC 3538.
[32] [2014] FWC 2104.
[33] [2015] FWC 6556.
[34] See for example the attached Fair Work Commission Quarterly Report, Anti-bullying report Jan-Mar 2018, 3rd Quarter 2017-18. https://www.fwc.gov.au/documents/documents/quarterlyreports/quarterly-report-anti-bullying-3rd-qtr-2017-18.pdf