It’s been over a year since the anti-bullying regime under the Fair Work Act 2009 (Cth) (FW Act) commenced operation, but to the surprise of many, it’s been a slow start.

In the first nine months of 2014, the Fair Work Commission (Commission) received more than 530 applications for orders to stop bullying (Anti-Bullying Orders) but only one of those resulted in Anti-Bullying Orders being made.

Since then, a handful of Anti-Bullying Orders have been made but the number of applications has remained lower than expected. This may be due to a number of reasons, including that there is no financial compensation attached to the Anti-Bullying Orders, that the jurisdiction is not yet widely known and that the Anti-Bullying Orders are premised on there being some form of ongoing relationship between the applicant and the alleged bully.

In this article, we will take you through some important rulings of the Commission over the last year about bullying, including the important decision of the five member Full Bench about what it means to be bullied “at work”.

What is “bullying”?

There is a range of behaviour that can constitute bullying, including unjustified criticism, excluding someone from events, making unreasonable work demands, spreading rude or inaccurate rumours, teasing or practical jokes and behaving aggressively. However, this behaviour will only constitute bullying under the FW Act if it is repeated unreasonable behaviour towards a worker that creates a risk to their health and safety.

The Commission has previously given some guidance about what type of conduct will constitute bullying ¹. It has said that there needs to be more than one occurrence of unreasonable behaviour over time, but that the same specific behaviour does not need to be repeated. As to whether the behaviour is “unreasonable”, this is based on an objective test having regard to all of the surrounding circumstances. The Commission has also stated that there must be a causal link between the unreasonable behaviour and the risk to health and safety.

When is a worker bullied “at work”?

The Commission can only make an Anti-Bullying Order if it is satisfied that “the worker has been bullied at work by an individual or a group of individuals” and there is a risk that the bullying will continue. The FW Act then states that a worker is “bullied at work” if “while the worker is at work“, the individual or group repeatedly behaves unreasonably towards the worker (including in a group) which creates a risk to health and safety.

The Commission has recently considered the legal meaning of the expression “while the worker is at work” in the context of an application by three DP World employees to stop bullying ².

The Full Bench has now confirmed that:

• A ‘worker’ is an individual who carries out work in any capacity for a person conducting a business or undertaking. This includes employees (employed by constitutionally covered businesses), contractors or subcontractors, outworkers, apprentices, trainees, work experience students and volunteers.
• Any individual can engage in the unreasonable behaviour alleged to be bullying, including customers of the business. There is no requirement that they be ‘workers’ or that they be “at work” when they engage in the unreasonable behaviour.
• A physical workplace is not necessary to be considered “at work”. A worker will be “at work” any time that the worker is performing work, “regardless of his or her location or the time of day“, and any other activity which is “authorised or permitted by their employer, or in the case of a contractor their principal“. This includes being on a meal break at the workplace or accessing social media while performing work. However, what is meant by this phrase will need to be developed over time on a case by case basis.

The Commission then discussed some examples that were debated during the hearing. Their views were as follows:

• A worker will generally be “at work” if they receive a call from their manager outside of hours whilst they are at home. However, it will “depend on the context, including custom and practice, and the nature of the worker’s contract“.
• If an individual posts bullying comments on Facebook towards a worker, the worker does not need to be “at work” when those posts were made. The unreasonable behaviour “continues for as long as the comments remain on facebook“. Therefore, the worker need only access the comments while “at work” in order to enliven the Commission’s powers.
• It is unlikely that a worker is bullied “at work” if they read, whilst at work, a Facebook post by a person with whom they have no relevant workplace connection (e.g. by a former partner). However, the Full Bench avoided giving a concluded view on this example.

Reasonable management action

The FW Act contains a qualification that reasonable management action carried out in a reasonable manner does not constitute bullying. Management action can include performance management processes, performance reviews, counselling or disciplinary action for misconduct and investigating complaints and misconduct. However, it is unlikely to include a spontaneous criticism by a worker’s supervisor during a meeting with other colleagues.

Whether the management action is reasonable is a question of fact and depends on an objective assessment of the knowledge of those involved at the time, as well as all of the circumstances that led to the action being taken, that existed while the action was being taken and that flowed from the action, including the emotional state and psychological health of the worker involved. Whilst management actions do not need to be perfect or ideal, at the very least they must be lawful and must not be irrational, absurd or ridiculous ³.

However, reasonable management action can still be bullying if it is not carried out in a reasonable manner. This is again a question of fact and the test is an objective one. Factors that would be considered include the impact of the action on the worker, the way that the action was carried out (e.g. whether the action was consistent with policies and procedures) and the circumstances that led to the action.

In a recent case, the Commission found that the issuing of a warning without first raising specific concerns about performance with the employee and not considering any responses provided by the employee to be unreasonable ⁴.

In another recent case, the Commission held that a disciplinary process commenced because of an employee’s performance issues and which could lead to the employee’s dismissal was not reasonable management action, because it was not commensurate with and did not have any logical causal link with the behaviour or performance ⁵. In this case, the HR Manager had issues with the employee’s communication, attitude, ability to follow direction and complaints about his colleague’s work practices. However, the Commission was not objectively satisfied that there was conduct or behaviour that warranted disciplinary action as opposed to routine performance management. This was for reasons including that differences of opinion about work practices did not warrant disciplinary action and that the employee was responding effectively to management direction about his performance prior to the disciplinary action being instigated.

Are the Anti-Bullying Orders effective?

In March 2014, the Commission made its first Anti-Bullying Order in the decision of Applicant v Respondent, PR 548842. The consent orders included requiring a male employee not to have any contact with the applicant female employee alone, not to make any comments about the applicant’s clothes or appearance, not to send emails or texts to the applicant except in emergency circumstances and not to raise work-related issues with the applicant without first notifying senior management.

The employee was also ordered to complete any exercise at the premises before 8.00am and the applicant was also ordered to arrive at work no earlier than 8.15am. The parties were left with discretion about how to implement these orders in practice but were given the option to relist the matter if they experienced any difficulties. As there was no background or reasoning set out in the decision, it is not clear why this particular application was successful.

In mid December 2014, the order was revoked on the application of the female employee who said that it was in the best interest of everyone for the orders to be lifted in the New Year, due to the “negligible amount of conflict” between herself and her colleague and her feeling comfortable approaching her supervisor. The decision therefore demonstrates how the Anti-Bullying Orders can be effective in managing and restoring workplace relationships.

Wrap up

Although the Commission has now given some guidance on when a worker has been bullied “at work”, the parameters of the anti-bullying provisions under the FW Act will continue to evolve, as the Commission foreshadowed. The complexities of bullying in the social media age will no doubt continue to be a challenging area for the Commission.

Whilst the number of bullying applications being lodged is still less than expected, bullying will continue to remain a hot topic in 2015.

It is therefore important for employers to ensure that they have implemented appropriate measures to prevent workplace bullying, including through training and policies. Employers must also ensure that they are prepared to deal with any internal bullying complaints as more workers become aware of their rights under the FW Act. If these complaints are not handled correctly, employers or their workers may be the subject of anti-bullying applications.