First bullying decision defines "reasonable management action"

In its first substantive ruling on the merits of an application under the new bullying jurisdiction, the Fair Work Commission has fleshed out the concept of "reasonable management action" in rejecting a manager's claim that she had been subjected to repeated unreasonable treatment by two of her subordinates.

The manager asked the head of the FWC's bullying panel, Commissioner Peter Hampton, for orders against one of the subordinates, as the second had since left the company. She also asked him to require her employer to comply with its bullying policies and monitor workplace behaviour.

In June last year, she was appointed by the company to manage a new team of delivery support officers (DSOs), with her contract containing a six-month probation period. The team comprised employees drawn from different work groups, and, according to Commissioner Hampton, it was likely that some of them "did not initially embrace that change".

Some of the DSOs were supportive of the manager, while others were not. In August, one of the DSOs in the second camp made a bullying complaint against her to the company, which it investigated and ultimately found to be unsubstantiated.

The DSO was moved to another location, and later left the company. A second DSO made a bullying complaint against the manager on January 7, containing similar allegations.

Without knowing about the second DSO's complaint, the manager sought a meeting with the company's HR department to talk about the DSO's conduct. When she was told that the DSO had made a complaint against her, she decided to lodge the FWC application rather than raise her own bullying concerns with HR.

The company engaged AiG's law firm, Ai Group Legal, to conduct an investigation into the competing allegations. It found the DSO's allegations against the manager substantiated in part, but not the manager's complaints against her subordinate.

The manager told Commissioner Hampton the bullying conduct against her included:

  • the two separate complaints made against her;
  • the company's decision to investigate those complaints;
  • the company's failure, following the first complaint, to prevent similar conduct happening again;
  • "ongoing malicious rumours" being spread about her in the workplace, which were perpetuated by her employer failing to notify employees of the outcome of the complaints;
  • daily harassment and badgering by the second DSO; and
  • the second DSO taking notes of conversations between them.

Bullying must be "persistent" conduct

Referring to the definition of bullying in s789FD, the commissioner said the concept of individuals "repeatedly behaving" unreasonably implied the existence of "persistent unreasonable behaviour but might refer to a range of behaviours over time".

"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 or a group of workers to which the applicant belongs," he said.

Commissioner Hampton said whether behaviour was unreasonable under s789FD was an objective test, and it also had to constitute a "risk" to health and safety.

"Cases on causation in other contexts suggest that 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," he said, noting that this approach was equally applicable to the bullying jurisdiction.

"A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of 'risk' is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual."

Employer investigations reasonable

Commissioner Hampton said the manager's application directly cited only the second DSO as the individual whose behaviour was unreasonable, "however, by implication the conduct of the HR staff and her direct manager has also been raised in this case".

He found that the company's receipt and investigation of the two complaints against the manager was not unreasonable.

"Indeed, that course of action was the only reasonable and prudent response," he said.

While noting that some of the issues raised against the manager were "very minor", the commissioner said there was insufficient evidence that the complaints were part of a coordinated campaign against her.

He also found no fault with the company's engagement of Ai Group Legal to investigate the competing allegations surrounding the second DSO, and that the law firm's approach to the investigation was not unreasonable.

Commissioner Hampton said in "hindsight" the company should have provided more support — including mentoring and management training — to the manager following the resolution of the first complaint. But this failure was not unreasonable, given the manager's initial reluctance to take up the support that was offered.

Commenting on the "reasonable management action" exclusion in s789FD(2), Commissioner Hampton said the explanatory memorandum (paras 111 and 112) for the bullying amendments suggested that the legislature intended it to pick up "everyday actions to effectively direct and control the way work is carried out".

He said the test is whether the management action was reasonable, "not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'".

This meant that:

  • 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';
  • the "actual" action needed to be considered, rather than the applicant's perception of it; and
  • it might be relevant to consider whether the action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

AiG advocate says lessons to be learnt

The AiG represented the company and the second DSO in the formal hearing before the commissioner.

National workplace legal services manager, David Miller, told Workplace Express the status of the employer's own investigation report was an issue in the case, with the company resisting the commissioner's request to be given a copy.

Miller said the report was subject to legal professional privilege, and a number of employees had provided information to the law firm on the basis that it would remain confidential.

He said that it should be enough to advise the FWC that an investigation had been carried out and what its findings were, and Commissioner Hampton had ultimately appeared to accept this.

Miller said providing the whole report to the commission risked turning it into a "quasi review body" for employer investigations, which was in nobody's interests.

The AiG had also requested that the parties remain anonymous, and Miller said the commissioner was inclined to grant this, "all things being equal".

"Given the nature of the matters considered in this application, the fact that it relates to ongoing employment relationships and my findings, I have also 'anonymised' the names of the parties and individuals in this decision," the commissioner said in his ruling.

Miller said it probably also helped that they had raised the issue a week before the hearing.

He said the "lower than anticipated" number of applications so far lodged under the new jurisdiction could be put down to three factors in the legislation: the need for the conduct to be "ongoing" and not just an isolated incident, the requirement that it is likely to continue (which is lacking if the protagonists are no longer employed) and the absence of monetary compensation.

Ms SB [2014] FWC 2104 (12 May 2014)