Employment Services & Solutions Australia | Workplace Bullying- Recent Developments
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Workplace Bullying- Recent Developments

What is Workplace Bullying

A year on from the introduction of the Fair Work Commission’s (‘FWC’) bullying jurisdiction, the number of workplace bullying claims from employees has been significantly lower than expected. The manner in which the FWC have interpreted the anti-bullying provisions, the requirement that the employee who is making the complaint remains as an employee of the business, and the fact that the FWC cannot make orders of monetary compensation are all likely to have contributed to this outcome.

This does not mean though that employers should treat incidents of bullying as an unimportant issue. There are a range of risks and consequences that may impact on businesses that do not manage this issue effectively.

Workplace bullying is defined in the Fair Work Act 2009 (‘the Act’) as;

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

 The Decision

In a recent decision from the FWC, a training manager from a major national listed company applied for an order to stop bullying by her General Manager, The Applicant v General Manager and Company C [2014] FWC 3940. The Applicant alleged that her General Manager was bullying her by;

  • Micromanaging the Applicant
  • Undermining the Applicant by dealing with the Applicant’s team members directly
  • Raising his voice whilst talking to the Applicant
  • Directing the Applicant to take leave after the Applicant had just returned from stress related personal leave
  • Refusing the request of a support person for the Applicant during one on one meetings with the General Manager

Commissioner Roe determined that in all but one instance the conduct of the General Manager was “reasonable management action carried out in a reasonable manner”.  The FWC accepted that the General Manager had significant obligations to ensure that company objectives were met and that managing staff performance was part of his responsibility within the Company. The FWC found that;

  • The General Manager was not micromanaging the Applicant but required more frequent reporting to improve the departments economic performance
  • As his responsibility was the whole department it was acceptable that he communicated directly with the Applicant’s team members
  • It was acknowledged that during performance management, instances can occur where a manager might use a forceful tone or even raise their voice to make a point, however, if such conduct were to be repeated it may be viewed differently and may constitute workplace bullying.  In this instance the manner in which she was spoken to was a one off event, and the Commissioner found that in the circumstances that did not constitute bullying 
  • The General Manager was the best person to determine the Applicant’s fitness for work that day when she did not return with a return to work clearance from the doctor

The Commissioner was critical though of the General Manager’s refusal to allow the Applicant to have a support person during one on one meetings.  The Commissioner found that whilst addressing performance concerns may have constituted reasonable management action, it was not carried out in a reasonable manner.

In this case, no orders were made against the company or the General Manager as the Commissioner was satisfied that this was not an incident of workplace bullying because the actions that were identified as bullying were not repeated and as such the definition of workplace bullying under the Act had not been satisfied.

Lessons for Employers

  • Workplace bullying is a serious issue that can result in claims being made to the FWC.
  • Whilst the number of claims has not been significant as yet, the FWC can make Orders against the company and individuals employed by the Company and this could have a significant impact on the ability to effectively manage the business.
  • The FWC has made it clear though that company management has the right to manage staff performance and they will not be hindered in this process so long as they carry out the performance management process in a reasonable manner. Reasonable management action carried out in a reasonable manner is not workplace bullying.
  • Senior management need to consider all the circumstances present and how the employee responsible for dealing with the performance management process deals with the employee on each occasion.  This review process may involve the actions of the manager that is dealing with the issue on a day to day basis, having their conduct periodically reviewed by another manager who is not interacting on a day to day basis with the employee.  This has the capacity to limit the chances of personal frustrations at the actions of the employee, or personality disputes being unreasonably classified as performance issues.  If they are truly performance issues, the review process will assist in ensuring that the issues are adequately assessed and appropriately addressed.
  • Employers should ensure that the employee undergoing performance management has adequate support during the process.