First decision in a contested bullying case
On 12 May, Commissioner Hampton of the Fair Work Commission delivered judgment in the first contested bullying case to reach a final decision in the FWC.
The decision does not name the parties, but the situation described is one that many involved in human resources issues can relate to. It also gives some indications of how bullying matters are likely to run in the future, and in particular how the FWC is likely to weigh up evidence in such a matter.
In this case, a restructure had merged 2 teams at different locations, and had appointed the complainant, SB, as team leader of the merged team. She encountered resistance from team members who were not happy to embrace the changes introduced by the business. SB did not receive support from management to the extent that she felt was appropriate.
In the context of tension between SB and her team, in August 2013 an employee made an internal bullying complaint about SB’s behaviour. This was investigated by the employer, and dismissed. Subsequently, another employee made a complaint about bullying by SB, which was partly upheld and partly dismissed, after an external investigation. It was after this that SB made a bullying complaint to the Fair Work Commission, alleging bullying by her subordinates, and bullying by management by way of lack of support, including receiving the bullying complaints, the investigations and not sufficiently publicising her exoneration from the first complaint, and the dismissal of another complaint against her about conduct at the Christmas party.
Commissioner Hampton observed that much of the evidence consisted of generalities rather than detail, and involved “potentially inflated notions” of the significance of various instances of conduct. One of the witnesses for the team leader had provided a statement, but was unwilling to provide details, which the Commissioner noted was perhaps understandable because of ongoing working and reporting relationships, but meant that there was a substantial gap in the evidence.
The Commissioner ultimately found that no bullying behaviour was proven. There was a lack of evidence of repeated conduct or of a risk to health or safety or of the likelihood of continuation of the conduct complained of. The conduct alleged also fell short of being unreasonable conduct.
For example, while SB was not happy about the investigations, the Commissioner noted that the employer had an obligation to investigate complaints of bullying, and that it was reasonable to do so by way of an external investigation. It was also reasonable of the employer not to make a particularly prominent publication of the outcome of the first bullying complaint the Christmas party complaint, as that might well have given extra prominence to the original allegations, against SB’s interests. Dealing with unfounded complaints might be unreasonable behaviour by the employer, but none of the instances in this case was sufficiently clear cut to say at the outset “This is unfounded”.
Inflated ideas about what conduct might count as “bullying”, whether for the purpose of an FWC complaint, or generally, are very common, and the FWC bullying jurisdiction will fulfil a useful function if it helps clarify thinking about what may or may not amount to bullying. This decision indicates that cogent evidence will be required before the Commission it is satisfied about behaviour being unreasonable, likely to continue and posing a risk to health and safety, all matters which are necessary before a finding of bullying can be made.
Evidence being incomplete because potential witnesses do not wish to become involved has always seemed likely to be a problem in the bullying jurisdiction, which is predicated on employment being ongoing.
In this case, the Commissioner concluded by suggesting the employer pay attention to some matters in relation to future handling of the issues, in attempt to assist in dealing with issues which showed every sign of becoming chronic, and which had already resulted in staff turnover and stress-related workers compensation claims.
This case clarifies what is likely to make headway in the FWC anti-bullying jurisdiction.
For further advice on dealing with bullying claims in your workplace please contact our experienced Employment Lawyer:
Stephen Booth, Principal
Phone: +61 2 9895 9222