With the anti-bullying regime having been in effect for just six months, we thought it timely to provide an update on three recent cases.
Previous Bullying Conduct:
In a precedent-making decision on 6 March 2014, the Fair Work Commission (FWC) considered whether bullying conduct that occurred prior to the legislation coming into effect on 1 January 2014 could be taken into account.
The relevant sections of the Fair Work Act 2009 (Cth) provide that only a worker who “has been” bullied at work can make an application to stop bullying. The FWC determined that, overall, the section operates prospectively, in that it seeks to prevent future bullying, and the FWC cannot order compensation for past behaviour. However, the FWC concluded that previous bullying behaviour prior to 1 January can be considered in determining whether there will be a future risk of the bullying occurring.
The first anti-bullying order was issued by the Commission on 21 March 2014. This example has given us a brief insight into the types of orders we can expect from this jurisdiction, and included the following:
The employee who was the subject of the application:
- shall not complete any exercise at the employer’s premises before 8am
- shall have no contact with the applicant alone
- shall make no comment about the applicant’s clothes or appearance
- shall not send any emails or texts to the applicant, except in emergency circumstances
- shall not raise any work issues without notifying the Chief Operating Officer or his subordinate beforehand.
And the applicant was ordered not to arrive at work before 8.15am.
Reasonable Management Action
In a decision from 12 May 2014, the FWC deconstructed what could be considered “reasonable management action”. The FWC considered three elements:
- The behaviour (being relied on as bullying conduct) must be management action.
- It must be reasonable for the management action to have been taken.
- The management action must have been carried out in a manner that is reasonable.
To determine whether management action is reasonable, it is necessary to consider:
- The circumstances that led to and created the need for management action to be taken.
- The circumstances while the management action was being taken.
- The consequences that flowed from the management action.
Attributes and circumstances of the situation, including the emotional state and psychological health of the worker may also be relevant.
The Commission also determined that the test is not whether the action could have been taken in a manner that was “more acceptable” or “more reasonable”, therefore:
- Management actions do not need to be perfect or ideal to be considered reasonable.
- A course of action may still be reasonable, even if some steps are not.
- The action must be lawful and not “irrational, absurd or ridiculous”.
- Any “unreasonableness” must arise from the actual management action and not the applicant’s perception of it.
- If there was a significant departure from established policies or procedures, whether such departure was reasonable in the circumstances.
Lastly, in determining whether management action was taken in a reasonable manner, may depend on:
- the action
- the facts and circumstances giving rise to the requirement for action
- the way which the action impacts upon the worker
- the circumstances in which the action was implemented
- any other relevant matters.
This topic was discussed by Mark Peters in more detail at our recent Big Picture HR Breakfast on 19 June. If you would like to be included on the mailing list for future Big Picture HR Breakfasts, please contact Alison Fisher.