Bullying claims under the Fair Work Act 2009 (Cth)
Date: August 2, 2016
The Fair Work Commission has again demonstrated that it will not easily grant orders to stop bullying in response to applications made under the anti-bullying provisions contained in the Fair Work Act 2009 (Cth).
ISSUE
The Fair Work Act 2009 (Cth) (FW Act) (part 6-4B) enables the Fair Work Commission (FWC) to make “any order it considers appropriate” where it determines that a worker has been bullied at work and there is a risk that the worker will continue to be bullied at work. The decision of Perez [2016] FWC 4097 (Perez case) provides useful guidance relating to the grounds on which anti-bullying orders will typically be granted by the FWC.
The FW Act (section 789FD) defines when a worker is bullied at work to include where an individual or group of individuals “repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member…and that behaviour creates a risk to health and safety”.
In the Perez case, the employee alleged bullying conduct by a group of individuals working at the same hospital.
OUTCOME
The Commissioner provided a useful summary of some important issues relevant to the determination of bullying claims in the FWC. Referring to an earlier FW decision of GC [2014] FWC 6988, the Commissioner noted:
- There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.
- An applicant may rely upon conduct that took place prior to the commencement date of the new provisions, to demonstrate bullying conduct.
- ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.
- The behaviour must occur whilst the applicant is at work.
- The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety…
- Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.
The Commissioner also referred to another earlier decision of the FWC, Amie Mac v Bank of Queensland Limited and others [2015] FWC 774, where the Vice President made it clear that the requirement for repeated reasonable behaviour was a “core element” of the bullying provisions [at para 87]. Ultimately, the Commissioner was not satisfied that bullying had occurred.
IMPACT
The Perez case reiterates that it will not be enough that an employee feels that they have been bullied to enliven the FWC’s power to make anti-bullying orders. The applicant worker must be able to establish that the various requirements have been met on an objective basis.
In the Perez case, the Commissioner found the applicant to be an honest witness but “whose subjective views about the rights and wrongs of the situation dominated his recollection of the facts” [at para 44].
In the earlier decision of Gore [2016] FWC 2259, the FWC dismissed another application for orders to stop bullying where the Commissioner said “any application of alleged bullying is both inevitably, and importantly, highly contextual. However, the legislation does not provide for an applicant’s self-belief or conviction to trump all other factors” [at para 73]. The Commissioner went on to explain that an “applicant’s perspective has to be balanced against the conduct of others, including reasonable management action carried out in a reasonable manner” [at para 74] and that “whilst the [applicant] may have been sincere in her beliefs and view, the anti-bullying provisions of the FW Act are to protect bullying behaviour, not substantially a person’s feelings” [at para 77].
Whilst an employee’s subjective feelings will clearly be relevant to a certain extent, it is essential that when faced with bullying claims employers conduct an objective assessment of all relevant facts and circumstances to determine the likelihood of the FWC being able to make anti-bullying orders under the FW Act.
CONTACT
Whitehall Workplace Law
Level 14, 330 Collins Street, Melbourne, VIC 3000
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