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Past Behaviour Counts and Other Lessons from the Anti-Bullying Tribunal

Thursday, 24 July 2014

Past Behaviour Counts and Other Lessons from the Anti-Bullying Tribunal

From a post in hrdaily: 

In some of the key cases handed down in the anti-bullying jurisdiction so far, the Fair Work Commission has provided useful guidance on what constitutes "repeated unreasonable behaviour", but also raised concerns about the scope of orders it can make. 

Since January 1, 2014 the Fair Work Commission has had jurisdiction to deal with bullying complaints and order the bullying to stop. While it has no power to order reinstatement or compensation, the FWC does have considerable scope to intervene in workplace processes to deal with complaints and prevent the behaviour from reoccurring. 

Despite business concerns about the new powers handed to the FWC, only a very small number of applications are making it through to a decision on the merits of the application, according to an FWC bullying report covering the first quarter of this year. In this article, Holding Redlich partner Michael Selinger sets out the key lessons from the rulings handed down to date.


Past behaviour does count

In a March decision, the applicant was seeking an order to stop bullying she felt she was at risk of suffering. Alleged bullying incidents took place between November 2007 and May 2013, before the new legislation was introduced, with no incidents reported after that. The employer raised a jurisdictional objection because the new laws commenced 1 January, 2014. 

But the full bench of the Fair Work Commission found the application could proceed, as consideration of past conduct "merely provides the basis for a prospective order to stop future bullying conduct". Selinger says this finding is important because there may only be one incident that happens after 1 January 2014, but the Commission has confirmed that past incidents can be used to show a pattern of repeated bullying behaviour. 

"If there's only been one incident, employees will normally struggle to show there is repeated unreasonable behaviour," Selinger says. "So the Commission can look to earlier conduct in determining whether there is a future risk of bullying." Application by Kathleen McInnes [2014] FWCFB 1440 (6 March 2014)


Seek clarification if the finding is broad

In another March ruling, Senior Deputy President Lea Drake placed a range of orders on an accused workplace bully. It was agreed the alleged bully must not comment on the applicant's appearance, must have no contact with the applicant when not in the presence of others, must not send emails or texts to the applicant except in emergency situations, must not raise any work issues without notifying his chief operating officer or the officer's subordinate first, and must complete any exercise at his employer's premises before 8am. 

The applicant was also ordered not to arrive at work before 8.15am. Selinger says this case raises concerns about the scope of the orders that can be made. "In theory the conditions of these stop-bullying orders continue indefinitely and operate outside of the workplace," he says. "Any breach would expose the applicant and respondent to monetary penalties. "And there was no time limit. If one left employment, theoretically the order would continue. This could be a problem [for] any individual who is subject to those orders, there could be a feeling of uncertainty about whether any action they take in a social context will also breach the order." 

Senior Deputy President Drake did, however, grant the parties leave to relist the matter if there were difficulties implementing the orders. "The way to deal with that is to ask the Commission to refine the scope of the order as much as possible," Selinger says. "This can be done before they make the order, or after the order is made." Applicant v Respondent, PR548852 (21 March 2014)

A fair process doesn't have to be perfect

The most significant reported case in the jurisdiction so far, handed down in May, dealt with whether the applicant could satisfy the evidential burden of proving "repeated unreasonable behaviour" against her. Ultimately the Commission failed to find this had taken place, despite a less than ideal complaints process followed by the employer and despite the fact the applicant was working reduced hours and was on workers' compensation due to stress caused by the workplace conduct. 

The applicant, who managed a delivery support team, made complaints about two team members. Complaints against one team member were substantiated, and this member was moved and then left employment. Complaints against the other were not substantiated. The team members also made bullying complaints against the applicant, and while the complaints of the one who left the organisation were found to be unsubstantiated, complaints from the other team member were found to be partly justified. 

The applicant argued the employer had failed to prevent similar conduct from occurring since the bullying team member left, and also that the employer had failed to prevent the applicant being the target of ongoing malicious rumours and from being harassed and badgered by other direct reports. But the employer opposed the application, saying there was an absence of repeated unreasonable conduct. The Commission provided some useful clarification in defining "repeated unreasonable behaviour". 

It confirmed the test for unreasonable behaviour was an objective test that took into account all relevant circumstances at the time. There was no specific number of repeated instances required, and it did not have to be the same type of behaviour. It also confirmed the test for whether management's actions were reasonable did not mean actions could have been undertaken in a manner that was "more reasonable" or "more acceptable". This means a course of action may still be reasonable even if particular steps taken by the employer are not. Selinger says the judgment shows management's actions do not need to be perfect or ideal, but must be lawful and not "irrational, absurd or ridiculous".

The unreasonableness also must arise from the management action in question, rather than the applicant's perception of it, he says. While the Commission found the employer could have been more proactive in ensuring support was provided to the applicant, the applicant had said she did not see the value of support, and communicated this to management, so it was not in itself unreasonable for the employer not to have insisted that it put in place further support at the time. 

The Commission was also not satisfied there was evidence of rumours and gossip being spread about the applicant. In fact, the employer's decision against fully investigating a further allegation about the applicant's conduct at a social function was reasonable. Although the applicant may have preferred a full investigation and a more fulsome public exoneration, undertaking this investigation would have created "a focus and further attention upon the applicant that may well have also been unwelcome". The Commission also found there was nothing unreasonable about engaging an external person to investigate the competing allegations, and there was nothing unreasonable about the approach this external investigator took.

 Ultimately the Commission found that while some behaviour from the employer was bordering on unreasonable, it did not classify as bullying behaviour and there was insufficient evidence of repeated unreasonable behaviour to create a risk to health and safety. "The applicant to succeed would have needed to show, I think, that she had requested support to stamp out any adverse effects of the investigation, and she needed to prove that it had fallen on deaf ears," Selinger says.

"In this case though, while the employer was slow to act, the applicant herself communicated to the employer she didn't need support at that particular time. "A fair process doesn't need to be a perfect process, but you do need to put the allegations squarely to the alleged perpetrator, and allow them to provide a full response. And you need to investigate whether the allegations are spurious. " The case also showed that the fact an applicant has lodged a workers' compensation claim will not always constitute evidence there is an ongoing risk to health and safety, Selinger says. Ms SB [2014] FWC 2014 (12 May 2014)

Learning from the results

Selinger says some crucial steps for employers to take in investigating bullying complaints include ensuring the allegations are not misrepresented, avoiding delays in investigating complaints, making sure to offer assistance and support to those involved, and never assuming that it's not required. "And don't jump to conclusions or form assumptions about what's happened," Selinger says. "Make sure you rely on relevant evidence." 

While the delivery support manager failed in her claim, the case did show rumour and gossip can form another type of bullying and harassment, he adds. "So it's important to emphasise the participants keep information about the investigation confidential," Selinger says. "You might otherwise create a further complaint against the business for allowing harassment or victimisation." Selinger suggests five key take-outs for employers based on the cases so far:

  1. Past bullying conduct can be relevant, even if it occurred before 1 January 2014;
  2. Clarification should be sought as to the time limit and geographical extent of any bullying orders that are made by the Commission or agreed to in a mediation process;
  3. Ensure that a fair process is followed when investigating bullying complaints, and that support is provided to the applicant and respondent after those investigations have concluded so as to prevent further incidents. Management action is seen by the Commission as a whole and not just a focus on each individual step in the process;
  4. Be aware of the potential for further rumour and gossip following an investigation and ensure all relevant parties are spoken to and advised of their obligations to keep details of the investigation confidential. Implement disciplinary action if required; and
  5. Check your current grievance and investigation processes and assess whether they are reasonable and whether they are being implemented correctly. In some cases, consider engaging an external investigator and check that their investigation process is also reasonable.

Learn about Barringtons Online Prevention of Bullying Training here

Blayne Webb, Director, Barringtons 

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