First Fair Work Commission ruling on merits of bullying complaint

The anti-bulling jurisdiction of the Fair Work Commission (FWC) has now been in place for over 4 months, and the first decision ruling on the merits of an application has been handed down.

The hearing of the application was conducted in private, and the names of the parties and individuals involved were kept anonymous in the published decision.  In that decision, the FWC rejected a manager’s claim for anti-bullying orders, finding that there was insufficient evidence there had been repeated unreasonable behaviour towards the applicant, or that any unreasonable behaviour had created a risk to health and safety.

The manager’s application to the FWC followed two bullying complaints made against her to her employer.  The first was made by a delivery support officer (DSO), investigated by the employer and found to be unsubstantiated.  After the manager was informed of the second complaint, also by a DSO, she lodged her application with the FWC.    Whilst the manager primarily alleged that she had been bullied by the two DSO’s, she also raised concerns about the conduct of her immediate manager and the employer’s human resources staff.  The employer separately engaged a law firm to conduct an investigation into the bullying allegations by the manager and second DSO.  That investigation found that the DSO’s allegations were partly substantiated, but that the manager’s complaints were not.

In the FWC, the manager alleged that unreasonable conduct against her included:

• the making, and receipt by management, of the two bullying complaints against her
• the employer’s acceptance of the two complaints for investigation
• the employer’s failure, following the favourable finding in relation to the first complaint, to prevent similar complaints being made
• the spreading of ongoing malicious rumours about her, and lack of support from the
• being harassed and badgered daily by the second DSO
• the second DSO documenting the manager’s conduct by taking notes of conversations between them

In the course of its decision, the FWC found that the making of allegations by the second DSO was not unreasonable, although some of the issues raised were very minor.   There was also no evidence that the previous complaint had been made falsely, or that the allegations by the DSO’s were part of a concerted campaign against the manager. It further found that the employer’s receipt and investigation of the two complaints against the manager was “the only reasonable and prudent response”.  Although the FWC found that, in hindsight, the employer should have taken more proactive steps to provide support to the manager after dealing with the first complaint, its failure to do so was not considered unreasonable as the manager had not taken up support which was offered.

In considering whether the conduct alleged met the Fair Work Act definition of bullying, the FWC discussed the concept of “reasonable management action”, confirming that the relevant objective test is whether the management action is reasonable, not “whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”  Reasonable management action must be lawful and not “irrational, absurd or ridiculous” but does not need to be perfect or ideal, and it is the actual action which must be considered, not the applicant’s perception of it.   Any significant departure from established policies or procedures, and whether this departure was reasonable in the circumstances, may be relevant to this determination.

During the first quarter of operation of the FWC’s bullying jurisdiction, only 151 applications for orders to stop bullying were received, compared the FWC’s previous forecast of 3500 per year.  Of these applications, 133 were made by employees and 109 were made by workers alleging bullying by their managers.  Only 8 applications have been finalised by the FWC, with 7 being dismissed on jurisdictional grounds or under section 587 of the Fair Work Act, which enables the FWC to dismiss applications which are not made in accordance with the Act, are frivolous or vexations, or have no reasonable prospects of success. 

For more information:

Jim Rutherford
Principal
Harwood Andrews
T: 03 5226 8579
E: jrutherford@harwoodandrews.com.au

Sonia McCabe
Associate
Harwood Andrews
T: 03 5226 8558
E: smccabe@harwoodandrews.com.au