Workplace bullying: a summary of the role of the Fair Work Commission

The following extract from a decision of the Fair Work Commission, delivered in a claim by an employee who complained to being bullied at work, constitutes a  comprehensive summary of the anti-workplace bullying jurisdiction of the Fair Work Commission.

“An applicant for an order from the Commission to stop bullying under s.789FC of the FW Act must not only be a worker but one who “reasonably believes that he or she has been bullied at work”, with that belief being actually and genuinely held, as well as it being reasonable in an objective sense. 2 The term “worker” has the same meaning as in the Work Health and Safety Act 2011 (Cth), but does not include a member of the Defence Force.3

Conduct does not occur “at work” merely because it has a substantial connection to work. 4 The question of whether behaviour or conduct occurred “at work” does not necessarily equate to the performance of work and will require a consideration of the context, including custom and practice, and the nature of the worker’s contract.5

Ascertainment of “unreasonable behaviour” in the context of Part 6-4B of the FW Act requires application of an objective test having regard to all the relevant circumstances applying at the time. 6 The Explanatory Memorandum which accompanied the Bill from which this legislation arises makes reference to the earlier majority report of the House of Representatives Standing Committee on Education and Employment, entitled “Workplace Bullying – We just want it to stop” and made the following points about behaviour and its assessment by the Commission:

“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.” 7

The conduct to be considered is that of natural persons, given that there is no provision in Part 6–4B that suggests bullying at work is something which can be engaged in by a corporation; 8 however the individuals engaging in the unreasonable behaviour need not be workers, for example they may be customers.9

Repeatedly behaving unreasonably implies the existence of persistent unreasonable behaviour and it 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. ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. 10 Consideration of the question of whether an individual or group “repeatedly behaves unreasonably” will require a purposive approach and “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.11 Further, for conduct to be reasonable it does not have to be the best or the preferable course of action, rather the conduct will be objectively assessed as to whether what was done was done “reasonably”, not whether it could have been done more reasonably or differently.12

It will be necessary for the Commission to determine whether the alleged behaviour actually occurred, and once the necessary findings of fact have been made, the Commission can then determine whether the behaviour was unreasonable. 13

In relation to the risk to health and safety of unreasonable behaviour, there must be a causal link; however, the behaviour does not have to be the only cause of the risk, but a substantial cause of the risk viewed in a common sense and practical way. A risk will be the possibility of danger to health and safety, and not necessarily actual danger. 14 The reference within s.789FD(2) of the FW Act to the effect that the definition of “bullied at work” does not apply to reasonable management action carried out in a reasonable manner is not an exclusion but a reference for the avoidance of doubt. The reference to reasonable management action carried out in a reasonable manner serves to provide guidance in the interpretation and application of s.789FD(1)(a) in circumstances in which it is alleged that management action such as performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions constituted bullying.15………………….

In considering the risk that such conduct may have to a person’s health and safety the Commission has held that the analysis involves a consideration of the possibility of danger and that the risk needs to be more than conceptual:

“[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. 59 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. 60 The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.61 In the sense used in this provision, the risk must also be real and not simply conceptual.”62 (footnotes in original)

………………………..Assessment of the general safety risks associated with an eventuality is usually undertaken within a risk management framework, typically calling for the identification of potential risks; the introduction of measures to control the risk; and the means to report on and respond to identified instances. In relation to the specific circumstance of an individual employee and whether an eventuality may pose a risk to their safety, several factors can be expected to require consideration, including the likelihood or foreseeability of the indicated event to occur and the consequences if it does. In the context of a matter such as this, the likelihood of the “eventuality” referred to in this form of risk analysis is the likelihood of an adverse reaction of some kind to each of the four decisions………………

Consideration of each matter on its own does not lead to the view that an adverse reaction to any one of the two decisions before 12 October 2016 was especially foreseeable. Every day of the week, people in workplaces are challenged about their behaviour or conduct, or may be asked to attend meetings to discuss allegations. Such adverse reaction as may arise for any single event of this type is, in the absence of direct knowledge of a known risk factor, unlikely to have foreseeable serious adverse health consequences. While one may be annoyed or concerned about being challenged about one’s behaviour or conduct such annoyance or concern would only rarely lead to serious adverse health consequences.”

Application for an order to stop bullying Burbeck v Alice Springs Town Council and others (2017) FWC 4988 delivered 6 October 2017 per Wilson C