Lessons From The Bullying Trenches

Lessons From The Bullying Trenches

The new federal anti-bullying laws have been in place for a little more than six months. This article reviews some of the important issues to come out of the decisions of the Fair Work Commission (FWC) in that time.

It is interesting to note there has not been the rush of employees to seek Fair Work’s protection in that time. There have been only a handful of decisions from the FWC, none of which have been in the employees’ favour.

Reasonable management action

Reasonable management action carried out in a reasonable manner does not constitute bullying. Reasonable management action may include performance management processes, disciplinary action for misconduct, informing a worker about unsatisfactory work performance or inappropriate work behaviour, directing a worker to perform duties in keeping with their job and maintaining reasonable workplace goals and standards.

Determining whether management action is reasonable requires an objective assessment of the management action in the context of the circumstances and knowledge of those involved at the time. Considerations include:

• the circumstances that led to and created theneed for the management action to be taken;

• the circumstances while the managementaction was being taken;

• the consequences that flowed from themanagement action; and

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:• the emotional state and psychological healthof the worker involved.

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 beperfect or ideal to be considered reasonable;

• a course of action may still be ‘reasonableaction’ even if particular steps are not;

• to be considered reasonable, the action mustalso be lawful and not be ‘irrational, absurd or ridiculous’;

• any ‘unreasonableness’ must arise from theactual management action in question, rather than the applicant’s perception of it; and

• consideration may be given as to whetherthe management action involved a significant departure from established policies or procedures and, if so, whether the departure was reasonable in the circumstances.

Showing upset and anger

The Commission has said it is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger.

It can be reasonable management action for a manager to forcefully communicate in both words and body language that the way in which the Applicant was interacting with him was unacceptable and that it could not continue (The Applicant and the General Manager & Company C [2014] FWC 3940).

Types of orders

Here is an example of orders made by the FWC, against an employee (the Respondent):

“The Respondent:

1. Shall complete any exercise at the employer’spremises before 8am.

2. Shall have no contact with the applicant alone.

3. Shall make no comment about the applicant’sclothes or appearance.

4. Shall not send any emails or texts tothe applicant except in emergency circumstances.

5. Shall not raise any work issues withoutnotifying the chief operating officer of the respondent, or his subordinate, beforehand.”

Jurisdiction – what organisations are subject to the fair work powers?

The anti-bullying jurisdiction is for designated entities, including “constitutional corporations”. This includes proprietary limited companies. Sole traders and partnerships are not covered by the legislation.

Must be a worker to make an application

The person making an application must fall within the definition of “worker” because it is only workers, as defined, who can make an application for an anti-bullying order.

The scope of the anti-bullying jurisdiction is very broad and extends beyond the classes of employees covered by other provisions of the Fair Work Act.

The anti-bullying jurisdiction is intended to cover persons who perform work for a person conducting a business or undertaking even though there may not be an employment relationship. So, apprentices and trainees, contractors, volunteers and work experience attendees can apply for an order.

No jurisdiction if bullying not likely to continue

Where the employment relationship has ended, an anti-bullying order cannot be made. In Mr MT [2014] FWC 3852, the employee had been dismissed during the period after lodgement of the application for an anti-bullying order. The Commission held it can only make an order to stop the bullying if it is satisfied there is a risk an employee will continue to be bullied at work.

Objective test

In The Applicant and the General Manager & Company C [2014] FWC 3940, the Commission said the determination of whether or not behaviour is unreasonable must be done objectively. What was known or should reasonably be known about the situation of particular individuals, including their physical and emotional situation, is part of the objective circumstances.

However, just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable.

Past events

There was an early challenge as to whether bullying events prior to January 1, 2014 (when the legislation commenced) could be taken into account. The FWC said it could.

So, if bullying has taken place before January 1, 2014 then it can still be considered in an application.

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