Despite what some might call ‘hysteria’ that prevailed at the time of the introduction of the anti-bullying laws and the expectation of the Fair Work Commission (the Commission) that it may receive some 3,500 bullying related applications per month the reality is that far fewer complaints of bullying have been received by the Commission and it has not stopped employees resorting to other avenues of redress such as workers compensation and adverse action. These other avenues are likely to be more attractive as a potential financial remedy is available.

According its report in March the Commission received 151 applications for orders to stop bullying in the first three months of operation, with the majority from employees of large organisations alleging unreasonable behaviour by their managers.. Only 8 of the applications were finalised with a decision and orders being issued only once on the basis that the worker faced a risk of continued bullying. Six claims were dismissed for jurisdictional reasons.

Employees made 133 of the 151 applications; employees of a labour hire companies made three; contractor or subcontractors four; and apprentices/trainees and volunteers one each. The overwhelming majority of workers (109) alleged bullying by their managers; with another worker the next greatest source of complaint (27); followed by a group of workers (20); and a subordinate (3).

The workers came from a broad range of sectors, with the highest number (23) in the clerical industry, followed by retail (13).

Below is a summary from recent decisions to assist employer as to how the Commission has handled complaints thus far...

The employment relationship be on foot for a bullying application to be considered and orders made

The Commission dismissed an employee's application for an anti-bullying order, finding that his dismissal by the employer after he lodged his claim meant that he had no reasonable prospects of success. Prior to the hearing of the bullying application the employer dismissed the employee, and then asked the Commission to dismiss his bullying application under s587(1). The Commission said that under s789FF(b) it had to be satisfied that there was a risk that the employee would continue to be bullied at work. Because he was no longer employed, there was no risk of continued bullying "at work", however if he was able to win reinstatement, he could bring a fresh application at that time. [1]

Orders issued will be specific as to future conduct between a victim and the perpetrator

In the first decision where orders were issued [2] the Commission directed an employee not to have any unaccompanied contact with a co-worker or make comments about their clothes or appearance. The orders were by consent in that case however if imposed by the Commission such orders may be difficult for an employer to manage let alone if third parties are involved for example in a labour-hire or joint venture context.

Orders of the Commission have no expiry

The orders issued in the first case did not have an expiry date although the Commission gave the parties leave to have the case re-listed for a further conference if they experience any difficulties in implementing the orders. it would be prudent for employers to seek clarification of any orders that are unclear to ensure it is understood clearly the extent to which they will apply and request an order for “liberty to apply” to the Commission once employment of anyone subject to such orders ceases so that they can possibly be set aside.

Past acts of bullying pre 1 January 2014 can be alleged and can be relevant

The Commission has ruled that it is not prevented from considering behaviour that occurred before the start of the new bullying jurisdiction when dealing with applications for orders to stop the conduct. A Full Bench of the Commission said [3]

"The reference to 'is at work' in s789FD(1) simply provides the context in which the bullying behaviour has taken place. The alleged bullying behaviour must take place prior to the making of an application for an order under s789FF. Section 789FC(1) makes this clear. Only a worker who reasonably believes that he or she 'has been bullied at work' can apply for an order,"

The bench stressed that a s789FF order operates prospectively and is directed at preventing the worker being bullied at work.

No specific number of incidents constitutes “repeated behaviour”

In a case [4] involving a supervisor seeking orders against her sub-ordinates the Commission considered definition of bullying in s789FD, and said that the concept of individuals "repeatedly behaving" unreasonably implied the existence of "persistent unreasonable behaviour but 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 (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs,"

Whether behaviour was unreasonable under s789FD was an objective test, and it also had to constitute a "risk" to health and safety.

"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. The ordinary meaning of 'risk' is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual."

Management action does not have to be perfect, it has to be reasonable

The Commission has indicated that the explanatory memorandum to the bullying amendments suggests that the legislature intended it to pick up "everyday actions to effectively direct and control the way work is carried out" and is not limited to disciplinary or performance management alone.

The test is whether the management action was reasonable, "not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'".

This means that:

• 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 needed to be considered, rather than the worker's perception of it; and 
• 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.

In a separate case the Commission found that found that a mining company's general manager did not bully an IT application developer when he directed him to take on a project that was not referred to in his job description [5]. In that case the Commission made the following observations:

• it was not uncommon for position descriptions to be couched in general terms and not contain each and every current or projected task to be undertaken, noting that the employee's PD contained no mention of specific projects.
• it is not sustainable for employees to say that a task is beyond their skill level and if the Employer does not agree, allege that it is workplace bullying. Such a situation would be tantamount to the Commission endorsing a one sided self-determining premise as bullying in the workplace.
• The employee conceded in evidence that the company had told him that if he found himself in difficulties with the project, it would provide support.
• The general manager had in fact assisted him with the task.
• The employee's contract allowed the company to vary his duties and responsibilities "at any time" consistent with his role, and also to allocate him duties outside that role as long as the "majority" of his tasks remained within it

Whilst not ideal, expressions of upset and anger will not necessarily constitute bullying behaviour depending on the context

Although the Commission found that a general manager has acted unreasonably in some of his interactions with a staff member he had not acted unreasonably when he forcefully instructed the training manager to change the way she was interacting with him.

The Commission observed:

• It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger; 
• It was reasonable, in the circumstances, for the general manager to forcefully communicate in both words and body language that the way in which the training manager was interacting with him was unacceptable and that it could not continue. However the Commission noted that had there been other examples of such behaviour, it would have had to look at this meeting exchange in a different light, but there had not been. [6]

Workplace change is often difficult for employees and support should be available to employees who may have difficulty adjusting

In the same decision the Commission observed that workplace change is often difficult. Much of an employee’s identity and self-worth can be linked to their employment. Change to reporting responsibilities can be very emotionally challenging for some individuals. Senior managers have to support employees who have difficulty adjusting and accept the need for reasonable periods for adjustment.

Maintaining privilege over investigation reports may be appropriate to protect employees and in the interests of maintaining ongoing employment relationships between parties

The employer in one case before the Commission resisted the Commission’s request for a copy of the employer’s own investigation report. The employer claimed that the report was subject to legal professional privilege and a number of employees had provided information to the law firm on the basis that it would remain confidential. It was argued by the employer that it should be enough to advise the Commission that an investigation had been carried out and what its findings were, and the Commissioner ultimately appeared to accept this in the interests of there being ongoing employment relationships.

Investigations must be conducted rigorously, impartially and independently

Employers will need to potentially satisfy the Commission of this. Matters the Commission is likely to take account of is the investigator’s terms of reference and how they had been determined, and the quality and reliability of the investigator's report. The Commission would also need to look at whether:

• there had been surreptitious communication between the employer or the employer's lawyer with the investigator during the investigation;
• the investigator was impartial and had adequate skills;
• the employer had input into the investigation's result, including draft reports; and
• the investigator received all relevant evidence and examined all witnesses.

Obtaining costs against unsuccessful applicants is likely to be difficult

As the Commission is required to identity who is conducting the workplace concerned, the nature of the workplace concerned and the parties involved which can be complex and not always immediately clear for a person bringing a bullying complaint. [7]

For more information or assistance with complaints of bullying please contact Rachael Sutton, Partner Holman Webb Lawyers.

1. Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines (AB2014/1091)
2. Applicant v Respondent, PR548852 (21 March 2014)
3. Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014)
4. Ms SB [2014] FWC 2104 (12 May 2014)
5. Tao Sun [2014] FWC 3839 (16 June 2014)
6. The Applicant v General Manager and Company C [2014] FWC 3940 (17 June 2014)
7. Ms S.W.(AB2014/1135)