August 2014

Bullying: Dear worker, be prepared to see an alternative point of view

The Fair Work Commission has sent an important message about its approach to the new bullying jurisdiction.  The Commission will take a common sense approach that will not interfere with genuine management actions and decisions, even if management is not perfect and a bit rough around the edges.

What is bullying?

Bullying under section 789FD of the Fair Work Act 2009 is:

  • an individual repeatedly behaving unreasonably towards a worker;

  • the word "repeatedly" "implies the existence of persistent unreasonable behaviour but might [also] refer to a range of behaviours over time";

  • what is unreasonable behaviour has to be considered objectively, based on what a reasonable person would, having regard to the circumstances, consider to be unreasonable; and

  • the unreasonable behaviour must create a real risk to the health and safety of the worker.

Reasonable management action carried out in a reasonable manner cannot be bullying.  Parliament did not intend to circumvent "everyday actions [of management] to effectively direct and control the way work is carried out".  Reasonable management action need not be perfect or ideal.

Ms SB [2014] FWC 2104

A manager (Ms SB) alleged that employees reporting to her had bullied her.   It was alleged the employees were spreading rumours in the workplace and making false complaints of bullying against her.  Ms SB criticised her manager and HR in not supporting her and in its handling of complaints against her.

In a comforting decision, the Commission held it will only make findings based on credible and reliable evidence.  It will not rely on hearsay, speculation and untested evidence.  There was no direct evidence of rumour spreading.

Ms SB was critical of her employer not investigating allegations about her behaviour at a Christmas function.  The employer did not investigate the allegations as they had no substance; Ms SB wanted a public exoneration.  The Commission held not all allegations require investigation.

Ms SB then criticised her employer for investigating allegations that she was a bully!  Ms SB relied on the fact that the allegations were later found unsubstantiated.  However, the fact that allegations are found unsubstantiated does not mean the allegations were false and misleading, or made improperly, to be unreasonable behaviour.  The Commission also held it was not unreasonable for the employer to investigate the bullying allegations by engaging an external investigator (indeed, it was a prudent response).

Mr Tao Sun [2014] FWC 3839

Mr Sun was unhappy with his performance appraisal and bonus, and upset that he was asked to perform tasks outside his position description.

In a decision that screams sensibility, the Commission said "[t]he belief by employees that they should have received a greater [discretionary bonus] does not, of itself,...constitute workplace bullying" unless the bonus scheme had been "applied in a punitive manner as part of a course of conduct".

The Commission recognised that employers have to determine the best use of resources.  Employees cannot simply say that requiring them to perform tasks outside their usual duties is workplace bullying.  Mr Sun's employment contract contained an agreement to work flexibly and the tasks were within his capabilities and work experience.

Applicant v General Manager and Company C [2014] FWC 3940

In this case, the applicant complained about her manager once removed, the General Manager.  The complaints arose in the context of a restructure, underperformance of the applicant's business unit and attempts to manage the applicant's own behaviour.

The Commission cautioned managers about workplace change.  "Workplace change is often difficult...[c]hange to reporting responsibilities can be very emotionally challenging for some...[s]enior managers have to accept the need for reasonable periods of adjustment and the need for support where employees have difficulty adjusting".  The changing work environment resulted in a difficult relationship between the applicant and the General Manager.

The applicant alleged the bullying behaviour involved micromanaging, aggressive behaviour, yelling and dealing directly with her team behind her back.  In the circumstances of this case, it was found that the manager did not engage in bullying. 

There was a graduated process of dealing with the applicant's behaviour and resistance to change.  It was reasonable for the manager to conduct a meeting behind closed doors to raise conduct concerns with the applicant.

The manager was within rights to request more frequent reporting from the applicant on her performance.  It was legitimate to itemise matters to be reported as part of managing the business unit.  The initial request for daily reports would have been intimidatory micromanaging, but the manager promptly revised this request to weekly.

Tensions naturally rise in the workplace in challenging times and we are all human.  The manager did speak to the applicant in a meeting angrily and pointed his finger at her.  But forcefully communicating was not bullying when that behaviour was directed at telling the applicant that her own conduct in the meeting was unacceptable.

It was not bullying to inquire into the absence of one of the applicant's team members as the manager "had overall responsibility for the department and was concerned, with good reason, to find ways to improve the economic performance of the department".

Finally, in the difficult relationship that developed, the applicant requested all meetings with the manager be witnessed.  This request was simply denied.  Whilst it was reasonable to refuse the request that all meetings be witnessed, the refusal was given without any consideration.  However, this isolated act was not sufficient to constitute bullying under the Fair Work Act as there was no repeated unreasonable behaviour (just a single instance).

Lessons learnt

Context is all important.  In investigating or managing any complaint about bullying, the circumstances of any management action needs to be clearly identified.  The Commission has sent a message that it will not ignore context; complaints will not be considered in isolation and by labels.  Reasonableness is the key, not perfection.  An apology and moderating behaviour could cure an allegation of bullying.

 

Author: James Mattson

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