That’s not bullying - they’re only rude and inaccurate rumours!
Posted on May 29, 2014
The Fair Work Commission has provided guidance on the new bullying laws.
As you know, the anti-bullying measure introduced into the Fair Work Act 2009 (the Act) came into force at the beginning of this year. As a result, a worker who feels that they have been bullied at work may apply to the Fair Work Commission (FWC) for an order to stop the bullying.
A recent decision by the FWC in relation to an application made by “Ms SB” provides guidance for employers as to how the anti-bullying provisions will be interpreted and applied.
Ms SB’s application centred on allegations of unreasonable behaviour by two employees and her employer in relation to how it handled her complaint.
The Act states a worker will be “bullied at work” where an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. This does not apply to reasonable management action carried out in a reasonable manner. In deciding Ms SB’s application, the FWC provided some important commentary on the underlined elements.
Repeated Unreasonable Behaviour
“There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker…”
The Need For A Causal Link
“… the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.”
Reasonable Management Action
- Management actions do not need to be perfect or ideal to be considered reasonable;
- A course of action may still be reasonable even if particular steps are not;
- To be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
- Any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
- Consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”
The FWC dismissed Ms SB’s application.
While the FWC found that Ms SB’s fellow employees had made vexatious allegations against her and spread rude/inaccurate rumours, and that the employer had conducted an imperfect investigation, it concluded that this was “bordering upon unreasonable” and the evidence did not support a finding that the alleged conduct created a risk to Ms SB’s health and safety.
Take Home Message For Employers
The FWC’s comments assist employers when assessing a bullying complaint. Upon receipt, employers should ask themselves:
- Does the complaint relate to repeated unreasonable behaviour (not necessarily the same type of behaviour)?
- Does the unreasonable behaviour create a substantial risk to health and safety?
- If the complaint relates to management action, was the action objectively reasonable?
Please contact a member of Lynch Meyer’s Workplace Relations team if you have a query in relation to the new bullying laws.
