When to issue a stop bullying order and when to not

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The distinction between circumstances in the workplace which might support a stop bullying order by the Fair Work Commission and the ordinary grind of the implications of a clash of personalities in the workplace is starkly on show in the following passages from a recent decision by the Fair Work Commission to not  issue a stop bullying order for a Bunnings store.

“Bunnings also referred, in conclusion, to the relevant legislative provisions and to various authorities which have considered how these provisions should be applied and interpreted. It made particular reference to the decision of Vice President Hatcher in Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774 and his conclusions about what is required in order to be satisfied that “the worker reasonably believes that he or she has been bullied at work.” It referred, in particular, to the following extract from the decision:

“… not only must the requisite belief be actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd.” 23

It continues to submit that this requirement has not been satisfied in the present application, based on the evidence now before the Commission. It next made reference to the requirement in the legislation that “an individual or a group of individuals repeatedly behaves unreasonably towards the worker.” 24 In this context it referred to the decision of Commissioner Hampton in Re SB [2014] FWC 2104, where he concluded:

“… the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. 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.” 25

It submits this decision makes clear that any assessment about what constitutes unreasonable behaviour should be judged on an objective basis having regard to all of the circumstances involved.

Bunnings submits that the alleged bullying behaviour. In this case is based on what it describes as “four discrete conversations or interactions”. 26 These involve, firstly, the conversation between Mr Krnjic and Ms Morihovitis in May last year in which reference was made to his appearance and her accent, amongst other things. Secondly, the discussion on 8 June 2016 when Mr Krnjic was in the tool shop. Thirdly, the discussion on the next morning when Mr Krnjic was assisting another employee in another part of the store to scan some tickets and, finally, the conversation that took place later on that day after Mr Krnjic had returned from his lunch break.

In its submission these circumstances, whether taken separately or in conjunction, cannot be said to constitute repeated and unreasonable behaviour. They instead involve “routine queries or directions from a supervisor to a team member as to the applicant’s whereabouts in a busy and large retail environment.” 27 At the same time Bunnings does acknowledge that it was not appropriate for issues about Mr Krnjic’s appearance to have been raised in conversation by Ms Morihovitis, however, it continues to submit that the evidence still does not establish that Mr Krnjic has been bullied at work. It also submits that he was responsible in part for delays that occurred during the investigation process.

Consideration

The submissions and evidence before the Commission in this matter makes clear that the circumstances involve two strong personalities who both have a genuine commitment to their work. Mr Krnjic, on the one hand, appears to have derived a significant degree of satisfaction from his employment. He has particular expertise in dealing with the products and services in the Electrical Department and is proud of the advice and assistance he provides to customers. It also appears that he has been prepared to provide support to other staff in the store as well. He has now been off work for some time, but would like to return to work as soon as possible.

It is also clear that he has had some difficult issues with some employees that he has worked with during the time he has been employed by Bunnings. However, the submissions and evidence in these proceedings only concern what has occurred in more recent times and, in any case, the employees referred to previously are no longer employed at the Northland Store, and cannot be said to now represent a “risk that the worker will continue to be bullied at work” 28 in the future.

The primary focus of this matter is instead upon the one individual who is named specifically, being Ms Jenny Morihovitis, who has been Mr Krnjic’s G4 or Team Leader since she was first employed by Bunnings in April last year. Mr Krnjic’s application also makes reference to the management in the Store, and their failure to acknowledge or act in response to his concerns.

I have no reason to doubt that Mr Krnjic believes he has been bullied by being singled out and treated differently from other employees. However, that of itself is not sufficient to establish he has been “bullied at work” in the context of the legislative framework contained in the Act. I now turn to deal with the application against the background of that legislation, and the authorities that have considered how those provisions should be applied.

As indicated at the outset, s.789FF requires that various pre-requisites be satisfied in order to establish that a worker has been “bullied at work.” It, firstly, requires that the employee “reasonably believes that he or she has been bullied at work.” 29 This in turn requires that not only must the belief be actually and genuinely held, but it must also be a reasonable belief when viewed objectively and not something that is, for example, based on an irrational or absurd view. The Commission must, secondly, be satisfied that “an individual” or “a group of individuals” have repeatedly behaved unreasonably towards the employee, and “that behaviour creates a risk to health and safety.30 The legislation also makes clear that “reasonable management action carried out in a reasonable manner”31 does not constitute bullying at work.

These various requirements were considered in some detail by Vice President Hatcher in the matter of Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman [2015] FWC 774, which was handed down in February last year.

After reviewing the various requirements of s.789FD in some considerable detail the Vice President came to the following conclusions about what the legislation requires:

“[87] The requirement for repeated unreasonable behaviour is clearly a core element of Part 6-4B. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 through which Part 6-4B was enacted discloses that the definition of bullying at work in s.789FD, including this element, reflected a recommendation for such a definition contained in the report of the House of Representatives Standing Committee on Education and Employment “Workplace Bullying – We just want it to stop”. In referring to that report, the Explanatory Memorandum said:

“109. The Committee went on to note that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.”

[88] In Re SB, the Commission (Hampton C) discussed the requirement for repeated unreasonable behaviour in the following terms:

“[41] Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. 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.

[43] ‘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.”

[89] I respectfully agree with those statements, but I would add three further observations about the interpretation and practical application of the expression “repeatedly behaves unreasonably” in s.789FD(1)(a). First, the expression falls within a definition provision. The function of a legislative definition, as was pointed out by McHugh J in Kelly v R, is not to enact substantive law, but to provide aid in construing the statute. A definition provision is therefore not to be interpreted in isolation and thereby given a meaning which negates the evident policy or purpose of a substantive enactment. Part 6-4B has the evident purpose of establishing a mechanism by which the bullying of workers at work may be stopped. In interpreting, and applying, the expression “repeatedly behaves unreasonably” as it appears in s.789FD(1)(a), the concept of repeated unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work, and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable for the purpose of s.789FD(1)(a). A consideration of unreasonable behaviour which loses sight of the objective and subject matter of Part 6-4B may lead to the provisions not achieving their intended purposes, or being used for a purpose that was not intended.

[90] The second observation is that unreasonableness and its converse, reasonableness, are familiar legal concepts applicable in a range of diverse contexts. In Giris Pty Ltd v Federal Commissioner of TaxationWindeyer J said: “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law…”. Where, in an anti-bullying case such as this one, the requisite repeated unreasonable behaviour towards the workers is said to be constituted by or include unreasonable discretionary managerial decisions directed to that worker, some useful guidance may be obtained in assessing whether the definitional standard in s.789FD(1)(a) is met from decisions concerning judicial review of administrative discretionary decision-making. In Minister for Immigration and Citizenship v Li1 the High Court considered the standard of unreasonableness applicable to such decision-making. The plurality (Hayne, Kiefel and Bell JJ), in considering the well-known formulation of unreasonableness stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, said that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it”. They concluded their analysis by saying: “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. That formulation provides a useful yardstick for the application of the provision in a case such as this one.

[91] The third observation is that in order for conduct to be reasonable, it does not have to be the best or the preferable course of action. In Bropho v Human Rights & Equal Opportunity Commission, in interpreting the word “reasonably” as it appeared in s.18D of the Racial Discrimination Act 1975 (Cth), French J (as he then was) said:

“[79] … It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things ‘reasonably’. The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court.”

[92] In considering whether there has been unreasonable behaviour by an individual or group of individuals, it will of course be necessary for the Commission to determine whether the alleged behaviour actually occurred. Once the Commission has made the necessary findings of fact about the behaviour, it can then determine whether the behaviour was unreasonable.

[93] The final element in the s.789FD(1) definition is that the relevant behaviour “creates a risk to health and safety”. In relation to this element, I respectfully agree with the following analysis of Commissioner Hampton in Re SB, which is supported by authorities (cited by the Commissioner) concerning analogous provisions in NSW workplace health and safety legislation:

“[44] 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. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

[45] A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.”

[94] It is clear that it is not necessary for an applicant to demonstrate that he or she has suffered an actual detriment to health or safety – that is, actual illness or injury – in order to demonstrate the necessary risk. However, the existence of such an illness or injury may be relied upon as a manifestation of the necessary risk, provided of course that the requisite causal link to the unreasonable behaviour at work has been established.” 32

I am satisfied, in summary, that the decision makes clear that it is first necessary to establish the existence of repeated unreasonable behaviour. This can extend to encompass a range of behaviours over different periods of time. Secondly, “unreasonable behaviour” can be viewed as behaviour that a reasonable person would consider to be unreasonable. The Vice President also provided the following additional observations about what constitutes “repeatedly behaving unreasonably.” The expression should first be considered in terms of the intention to prevent bullying at work. Secondly, “unreasonableness” should not be limited to something which is, for example, irrational, bizarre or so unreasonable that no reasonable person could have contemplated that course of action. It should instead be “applied to a decision which lacks an evident and intelligible justification.” 33 Thirdly, for conduct to be considered to be reasonable it does not have to be the best or the preferred course of action. The test instead involves consideration of whether something was done reasonably, and not whether it could have been done in a more reasonable or different way. Finally, it is necessary to establish that the relevant behaviour “creates a risk to health and safety.” This requires that there be some causal link between the behaviour and the risk to health and safety when viewed in a common sense and practical way. I have endeavoured to apply these principles and this approach to the determination of the present matter…………………………….

Having reviewed the submissions and evidence I am, firstly, unable to conclude that Ms Morihovitis’s behaviour in these circumstances was unreasonable. A Team Leader with responsibility for a group of team members in a large retail store is entitled to understand where those team members are and what they are doing. A Team Leader is also entitled to expect that those same team members will engage in discussions about these issues when asked to do so. It is also acknowledged that Ms Morihovitis was relatively new to the Store, having only been employed in April last year. Her demeanour in the witness box indicates that she is a strong personality who has an equally strong commitment to her role at work. Her manner and her actions in the circumstances might also have been somewhat abrupt, and she might well have handled the situation with more sensitivity. In addition, as a newly appointed Team Leader her approach in dealing with her team members was likely different from her predecessors, and this may have created concern among some employees, particularly those of long-standing. However, these things alone are not enough to substantiate the serious claim of behaving in a way that can be said to constitute workplace bullying. In addition, given the evidence that is now before the Commission it is not possible to conclude that Mr Krnjic was singled out, micromanaged, or treated differently from anyone else in the same situation. That case is simply not made out based on the available evidence.

The legislation also imposes a requirement for repeated behaviour. It is accepted that a limited number of examples of particular behaviour might constitute repeated behaviour and Commissioner Hampton in the decision in Re SB has made clear that there is no specific number of incidents required in this context. The present matter essentially involves two separate sets of circumstances. Firstly, the conversation that took place in May and, secondly, the issues to do with Mr Krnjic’s whereabouts in the Store in June. As indicated, it is acknowledged that a relatively limited number of incidents might constitute repeated behaviour. However, I am not satisfied that the events involved in the present circumstances can be said to demonstrate a concerted pattern of behaviour that involves repeatedly behaving unreasonably. It follows that I am again unable to conclude that they constituted bullying at work.

However, these conclusions do not ignore the fact that there are some concerning aspects involved in all the circumstances of this matter. For example, it appears that Mr Krnjic was suspended from work after a complaint made by Ms Morihovitis without being given an understanding of why this occurred. He only received formal confirmation of this after making contact with Ms Sullivan in the corporate HR department. She then arranged for a letter to be sent to him detailing the allegations and what was proposed in response. In addition, it is regrettable that senior managers in the Store were not prepared to make themselves available to speak to Mr Krnjic about his concerns. It is also not clear why Mr Krnjic was given a directive that he not attended the Store as a customer until such time as he was cleared as fit to return to work. It should also be emphasised that I am not expressing any view in this decision about whether it was appropriate or not for Mr Krnjic to have been given a first and final warning, and for that warning to be extended by a further period of 12 months as a consequence of the circumstances involved in this matter.

Conclusion

I have already indicated that this matter involves two strong personalities. Mr Krnjic has worked at Bunnings for some time and is understandably proud of his product knowledge and his ability to assist customers and other staff members. At the same time Ms Morihovitis is a relatively new employee and as a Team Leader was endeavouring to work with her team, and carry out her role and responsibilities in a way that she believed was appropriate and in accordance with what was expected of her by her employer. This involved her having a clear understanding about where her team members were and what they were involved in. Mr Krnjic was perhaps unhappy about this level of scrutiny and believed he should have a degree of autonomy in terms of how he carried out his role and responsibilities. All of these factors have clearly created a degree of tension and difference of view between Mr Krnjic and Ms Morihovitis. However, for the reasons set out in this decision I am unable to conclude in all the circumstances that Ms Morihovitis has repeatedly behaved unreasonably toward Mr Krnjic in a way that can be said that he has been bullied at work. It follows that his application must be dismissed. It is to be hoped that he is now in a position where he is able to return to work and resume his duties.”

Application for an order to stop bullying Krnjic (2017) FWC 3688 delivered 12 July 2017 per Gregory C

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