Workplace bullying and the Fair Work Commission

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What follows is an extract from a recent decision of the Fair Work Commission which admirably explains the Commission’s  anti-bullying at work jurisdiction and powers.

“Commissioner Wilson in Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher [[2017] FWC 4988] helpfully identified the relevant consideration involved in determining an application for an order to stop bullying as follows,

“[15] 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. 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.

[16] Conduct does not occur “at work” merely because it has a substantial connection to work. 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.

[17] 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. 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.”

[18] 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; however the individuals engaging in the unreasonable behaviour need not be workers, for example they may be customers.

[19] 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. 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”. 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.

[20] 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.

[21] 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. 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.” (References omitted)

[11] In Amie Mac v Bank of Queensland Limited and Ors [[2015] FWC 774] Vice President Hatcher at [99] indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were,

“…intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”

[12] In Ms SB [[2014] FWC 2104] Commissioner Hampton held at [105] that conduct capable of being considered as unreasonable behaviour of the kind contemplated by s.789FD(1), depending upon the nature of the actual conduct and the context can include:

  • the making of vexatious allegations against a worker
  • spreading rude and/or inaccurate rumours about an individual, and
  • conducting an investigation in a grossly unfair manner.

[13] In some circumstances the evidence before the Commission may prove that an employee has been subject to unreasonable behaviour by other persons however the identity of the persons is unknown. Examples of such behaviour may be where an employee’s personal effects have been deliberately damaged, graffiti referring to an employee appears in the workplace or notes or messages are received by an employee however who was responsible for this behaviour is unknown. The Commission does not have to be able to identify the person/s who have engaged in the unreasonable behaviour and is entitled to accept unchallenged evidence that unreasonable behaviour has occurred. Such was the situation in the case in Sharon Bowker, Annette Coombe and Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The, Victorian Branch and Ors [[2015] FWC 7312] where Deputy President Gostencnik held that,

“[12] Not all individuals who have engaged in the Bullying Behaviour were able to be identified, some remain unknown. Some individuals involved in the Bullying Behaviour no longer work for DP World.

[13] The MUA Respondents, whilst formally denying the allegations of Bullying Behaviour, did not lead any evidence to rebut any allegation of Bullying Behaviour allegation directed to the MUA Respondents made by the Applicants, and they accepted that on the basis of the evidence before the Commission there is a sufficient basis for the Commission to be satisfied that each of the Applicants has been bullied at work and to make the findings sought by the Applicants. The finding sought by the Applicants is for the Commission to issue a statement to the effect that each of Ms Coombe, Ms Bowker and Mr Zwarts had been bullied at work.

[14] Before turning to those findings, it is necessary to say something of the ‘group of individuals’ that engaged in Bullying Behaviour. It seems to me necessary that I am able to identify, by some description, the individual or group of individuals, whether known or unknown, who engaged or participated in the Bullying Behaviour. In the circumstances of this case, identifying the features of a group of individuals that engaged in the Bullying Behaviour whose members (or some of them) are unknown is difficult. Ultimately, I have decided to accept the Applicants’ description of the group as constituting those persons who subscribe to, or support, the existence of a system of authority and control at the WS Terminal which stands apart from DP World, the employer which stevedores are paid to serve, and a breach of norms of behaviour established and enforced through such a system. In the circumstances of this case, I am satisfied that the description outlined sufficiently describes the group of individuals that engaged in the Bullying Behaviour.”

Re Watts (2018) FWC 1455 delivered 20 March 2018 per Williams C

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