Defining the limits of “bullying” in the Fair Work Commission
One year on from the commencement of the FWC’s anti-bullying jurisdiction, there have been far fewer cases than anticipated, and very few of those have had anti-bullying orders made by the Commission.
However, an anti-bullying claim is still a potential headache for an employer because dealing with proceedings, while remaining in an ongoing employment relationship, can be very difficult, and because, although the FWC cannot award compensation, an agreed payment along with a Deed of Release and termination of the employment relationship is in fact sometimes the solution to an anti-bullying claim.
Cases before the Commission continue to highlight what can, and cannot, be bullying for purposes of the FWC jurisdiction (note that these points are not necessarily relevant to other contexts in which bullying claims might arise such as workers compensation or work health and safety).
Among the points which have become clear are the following:
Termination of employment during the course of bullying proceedings will preclude any orders being made, because there will be no ongoing risk of bullying occurring in the workplace bowker. Note, however, that terminating the employment of an employee while a bullying application is pending carries the risk of being characterised as adverse action, leading to a claim in that jurisdiction, or potentially an unfair dismissal claim.
For bullying to take place "at work" the essential requirement is for the victim of the alleged bullying to be at work at the time the bullying behaviour occurs. This point was teased out in a case in which employees reported behaviour of a union member to management, and were then abused by other union members on social media for having broken solidarity by having "dobbed in" a union member (Bowker v DP World & MUA). The complainants argued that "while the worker is at work", the words used in the legislation, included bullying conduct with a "substantial connection with work" but the FWC held this is not the case, and that the words require the alleged victim to be performing work at the time of the bullying behaviour.
However, this does not necessarily need to be at the physical workplace, and it could be at any time when an employee would be considered to be "at work", ie they were performing work at any time or location, or engaged on an activity authorised by the employer, such as a meal break or using social media while at work. Part of the alleged bullying consisted of offensive social media comments which were posted when the employees were not "at work" in that sense. However, as the social media postings were viewed by the victims at later times, while they were at work and accessing social media within the limits allowed by the employer, this bullying behaviour was potentially within the scope of the FWC jurisdiction. Whether they were "at work" did not depend solely on the time at which the offensive comments were first posted: the alleged bullying conduct continued for as long as the comment remained visible on social media.
To the extent that union officials who were not employees at the same workplace engaged in offensive conduct, this conduct was still within the scope of the anti-bullying jurisdiction because it was experienced by the employees while they were at work, and so the MUA could be sued as an alleged bully. The alleged bully need not be "at work".
Meanwhile in an injury compensation case (Hardy v Blackwood), the Queensland IRC has held that the existence of workplace cliques (or the fact that people in the workplace dislike each other) does not necessarily constitute bullying and harassment. A council employee alleged psychiatric injury resulting from workplace bullying from 2009-2011. She had kept records of interactions with other staff over a number of years, and alleged 50 "stressors" which she argued had contributed towards her injury, including being directed to perform work outside of her job description (including work of an employee who had resigned, stocktaking, and organising birthday cakes). She said colleagues had yelled at her, spoken in a hostile tone, and sent "terse" emails.
The IRC held that cliques did exist in the workplace, and that poor behaviour made the workplace difficult and sometimes intense, and that it was apparent that a clique of employees did not like the claimant. However, that in itself was not bullying or harassment. The worker also behaved poorly in the workplace and one of the reasons for other employees avoiding her was to avoid confrontations, which they knew she would record in her diary. The claimant also sometimes substantially overreacted to "usual office activity".
The nuances of what is and what is not bullying can be very difficult to assess in the thick of things, where the situation is never as clear cut as it appears to be after detailed evidence is distilled to a conclusion by a court. The challenge for employers is to deal with issues promptly and fairly in real time, and the basic groundwork for that is to have in place policies which deal with bullying, harassment and discrimination, and a clear grievance handling policy to let people know where to go if there is a problem. Having these in place, and having staff aware of them, is the best starting place both for handling issues as they arise, and defending any subsequent claims.
If you need assistance with getting your policy house in order, please contact:
Stephen Booth, Principal
Phone: +61 2 9895 9222