A current case before the Fair Work Commission (the “FWC”) provides a case study on how bullying and unreasonable behaviour is not limited to employers in the context of an anti-bullying claim. The assessment of whether bullying and unreasonable behaviour has occurred requires an assessment of the specific circumstances of each case.

Facts

The applicant, who is employed as an area manager of a variety store retailer, accused two managers (a senior HR Officer and an Operations Manager) of bullying and unreasonable behaviour. The alleged bullying occurred over a two-month period, during which there was a restructure of management responsibilities for Victoria, which affected the applicant. The applicant sent the managers an email which in effect made numerous demands of the managers and appeared to be aimed at removing them from any involvement in the restructure.

Following the email, the managers and a director issued two letters to the applicant which set out concerns and directions to the applicant. The contents of the letters accused the applicant of negligence and breaching the employer’s leave policy, asked the applicant to cease and desist from sending further emails, and to attend a meeting to discuss his performance and the business’s direction.

Ruling

The FWC considered that the applicant’s conduct was unreasonable, calling it an overreaction to the announcement of the restructure, and describing his behaviour towards the managers subsequent to the issue of the two letters as hostile. However, the FWC also considered that the issue of the two letters and the circumstances surrounding them could be considered to be bullying and unreasonable behaviour.

The FWC considered that rather than being reasonable management action, the conduct of the managers and the director could be considered unreasonable because of “their content and the way they were communicated”. The letters did not reflect the applicant’s concerns and were sent when the company knew the applicant was unwell, potentially exacerbating those health issues.

The FWC has not yet made a final decision in the matter due to incomplete evidence from the parties. However, the FWC make various recommendations to the parties in the interim including:

• the revision of the company’s bullying policy;
• the revision of the company’s personal leave policy (due to inconsistency with the National Employment Standards); and
• a direction that the company should provide training to all employees on the avoidance of workplace bullying, to be conducted by a suitably qualified independent trainer external to the company.

Bullying defined

The bullying jurisdiction is a nebulous and relatively subjective area of employment which has been prone to misunderstandings. The FW Act sets out that for conduct to constitute bullying, it must be repeated, unreasonable, and create a risk to someone’s health and safety. This is a high legal threshold and must be assessed according to what the reasonable person considers to be unreasonable. Management actions such as “performance management, disciplinary action, allocation of work, restructuring of the workplace and employer directions” will not meet this threshold, provided they are carried out reasonably. However, if an employee does make a claim of bullying and unreasonable behaviour and it does not meet this threshold, this is likely the result of some other grievance they are experiencing in the workplace.

What can employers do?

The current case serves as a reminder to employers to confirm that their policies and training in relation to those policies are up to date. Employers should be proactive in taking steps to audit and rectify workplace cultural issues rather than waiting to react to complaints. This hands-on approach allows employers to improve their workplace culture.

PCS works with its clients closely to ensure that behaviour and culture policies, including bullying policies, are appropriate and reflect current best practice. PCS also provides training to ensure that employers and employees alike are aware of their rights and obligations under those policies. PCS can undertake a culture audit to provide your organisation with assistance in addressing cultural problems or challenges. Employers can also refer to our ‘Discrimination, Harassment and Bullying at Work’ online course to better identify and understand these issues.

Key takeaways

1. Employers need to take a proactive approach to addressing issues of bullying and unreasonable behaviour, particularly as employees return to the workplace.
2. Whether management conduct amounts to bullying will depend on the circumstances of management actions, and whether a reasonable person would consider it to be unreasonable.
3. Employers should ensure that their bullying and harassment policies and procedures are up to date and form a part of their regular training.

People + Culture Strategies