The FWC’s recent dismissal[1] of a manager’s workplace bullying application has clarified a number of outstanding aspects relating to the workplace bullying jurisdiction.
The decision also highlights the ways that employers can reasonably act to defend against workplace bullying claims.
This is the FWC’s first substantive ruling on the merits of a workplace bullying application and it begins to further demonstrate how this jurisdiction will operate in practice.
Background
In June 2013, the employee was appointed as manager of a small team of Delivery Support Officers (DSO).
Despite offers of support from the employer at the time to undertake further management training, the manager decided against it.
In August 2013, one DSO (subordinate) made an allegation of bullying against the manager.
This allegation was investigated by the employer and found to be unsubstantiated.
In January 2014, a second bullying complaint was made against the manager by a different member of her team.
Almost concurrently, the manager made allegations against the same DSO.
The employer engaged a third party to conduct an HR investigation into the two competing complaints.
The allegations against the manager were substantiated in part.
However, the manager’s allegations against the DSO were not substantiated by the external HR investigation.
The manager then decided to lodge a workplace bullying application with the FWC.
The Employee’s Claims before the FWC
In her application for an order to stop the bullying, the manager contended that the following incidents (among others) constituted repeated, unreasonable behaviour:
- Making of two bullying complaints (described as a “campaign” against her)
- Employer accepting those complaints for investigation
- Employer failing to take adequate action after the first complaint was unsubstantiated
- Spreading of rumours and gossip leading to humiliation
- Daily harassment and badgering
The employer opposed the application on a number of grounds.
The Decision
In deciding the outcome of the application, the FWC was required to consider the core elements of workplace bullying as defined by the FW Act.
Namely, the FWC had to decide whether the behaviour complained of was repeated unreasonable behaviour from a worker or group of workers that created a risk to the employee’s health and safety.
Repeated unreasonable behaviour can refer to both persistent behaviour and a range of behaviours over time.
Determining unreasonable behaviour is an objective test having regard to all the relevant circumstances applying at the time.
There must be a causal link between the behaviour and the risk to health and safety. The risk must be real and not simply conceptual.
In relation to the manager’s specific complaints, the FWC found the following:
- The employer’s receipt and investigation of complaints against the employee was not unreasonable: “indeed it was the only reasonable and prudent response”
- The employer’s alleged “failure” to support the employee after the first unsubstantiated complaint was not unreasonable, given the employee’s initial refusal to undertake management training when first promoted
- Little or no direct evidence relating to the spreading of rumours and gossip was available
- Engaging an external body to conduct a workplace investigation into competing allegations was not unreasonable
Finally, there was little direct or robust evidence of other behaviour that might be described as unreasonable.
The FWC accepted that the following are are all capable of being considered unreasonable conduct:
- Making vexatious allegations of workplace bullying
- Spreading rude or inaccurate rumours about colleagues
- Conducting a workplace investigation in a grossly unfair manner
It also accepted that a manager may be subject to bullying behaviour by subordinates.
However in this case the evidence was insufficient to decide in the employee’s favour.
In particular, the FWC could not accept that there was an ongoing risk to the employee’s health and safety.
The outcome? The manager’s application was dismissed.
Reasonable Management Action Defence
Of additional interest to employers, the FWC made a number of comments relating to the ‘reasonable management action’ exception.
Reasonable management action cannot be considered workplace bullying under the FW Act.
The necessary test is whether the management action is reasonable, not whether it could have been undertaken in a manner that was more reasonable or more acceptable.
What is reasonable is a question of fact and the test is an objective one (not the alleged victim’s subject opinion).
Other considerations:
- Management actions do not need to be perfect or ideal to be considered reasonable
- A course of action may still be ‘reasonable’ even if particular steps are not
- To be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’
- The “actual” action needs to be considered, rather than the employee’s perception of it
- It might be relevant to consider whether the action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances
Lessons for Employers
This first substantive decision on the merits of a workplace bullying claim contained useful guidance for employers about the practical application of the new laws.
In particular, employers can rest assured that conducting a fair workplace investigation into a workplace bullying complaint is a reasonable response.
[1] Ms SB [2014] FWC 2104 (12 May 2014)
