FWC bullying round-up: Withholding bonuses not bullying, more on reasonable management action, and lawyers welcome!
30 June 2014
Since 1 January 2014, workers have been able to seek orders to stop workplace bullying under Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act).
After a slow start, the number of Fair Work Commission (FWC) decisions on claims in the anti-bullying jurisdiction is picking up. In this In Brief, we consider three recent decisions which:
- show that an employer’s non-awarding of discretionary bonuses is unlikely to be considered bullying;
- confirm the trend in other recent cases towards a broad interpretation of the concept of “reasonable management action”; and
- indicate a willingness on the FWC’s part to allow legal representation in bullying cases.
KEY PROVISIONS OF PART 6-4B
Under section 789FD(1) of the FW Act, a worker is bullied at work when:
- another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and
- “that behaviour creates a risk to health and safety.”
Section 789FD(2) states that the definition of bullying does not include “reasonable management action carried out in a reasonable manner.”
The FWC may issue an order to stop bullying under section 789FF(1) where it is satisfied that a worker has been bullied, and there is a risk that the bullying will continue.
MR TAO SUN  FWC 3839 (16 JUNE 2014)
Mr Sun has been employed as an Application Developer with CITIC Pacific Management Pty Ltd (CITIC) since 2 April 2012. Mr Sun made two complaints of bullying in respect of the conduct of Mr Achemedei, CITIC’s General Manager Information Systems, both of which were dismissed by Commissioner Cloghan:
- Mr Sun argued that he had received a satisfactory performance review from his direct manager in early November 2013, but this was later changed by Mr Achemedei with the effect that he received a lower annual bonus than he expected. Cloghan C found there was no evidence to support this complaint, and that Mr Sun’s attempts to establish this by accessing an email from Mr Achemedei’s electronic diary was improper. In any case, the payment of a bonus is a matter for the employer’s judgment, and non-payment of a discretionary bonus (unless carried out in a punitive manner) will not constitute bullying.
- Mr Sun complained that the allocation to him of work on a specific project, the Cloud EOI initiative, was not within his position description and he was incapable of completing it effectively. Mr Sun was concerned about feedback on his role in this project, conveyed by his manager and Mr Achemedei at a meeting in February 2014. However, Cloghan C found that Mr Achemedei had not behaved unreasonably in allocating this work to Mr Sun: his position description contained no mention of specific projects, and it was “not uncommon for position descriptions to be couched in general terms and not contain each and every current or projected task to be undertaken”. Further, Mr Sun had been informed that if he encountered difficulties with the project he would be provided with support.
THE APPLICANT V GENERAL MANAGER AND COMPANY C  FWC 3940 (17 JUNE 2014)
The Applicant, a training manager with a national listed company, alleged that the General Manager (to whom the Applicant reported from 1 September 2013) had engaged in various forms of bullying conduct including:
- Displaying aggressive behaviour and an aggressive tone towards the Applicant, and questioning her decisions, at a meeting on 30 October 2013.
- Micro-managing and undermining the Applicant by consulting directly with members of her team.
- At a meeting on 12 November 2013, twice yelling that the Applicant was “wrong” (although after checking relevant emails, the General Manager conceded that the Applicant was indeed “right”).
- On 27 November 2013, when the Applicant returned to work after two weeks of stress leave, directing her to leave the workplace claiming an overriding concern for the Applicant’s health.
- Refusing the Applicant’s request (again, after her return from stress leave) not to have one-on-one meetings with the General Manager, and instead to have a support person at every meeting.
Commissioner Roe determined that, apart from the last of these instances of alleged bullying, the General Manager’s conduct did not amount to bullying and/or constituted reasonable management action. Specifically, Roe C found that:
- The General Manager’s conduct at the 30 October meeting, although it involved him becoming angry for a few minutes, was not unreasonable: “It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger.”
- The General Manager’s direct contact with members of the Applicant’s team was reasonable: “given that the General Manager had overall responsibility for the department and was concerned, with good reason, to find ways to improve the economic performance of the department. The examples given when taken as a whole do not constitute unreasonable micro-management.”
- Although there was a dispute as to whether the General Manager actually raised his voice at the 12 November meeting: “his immediate concession that ‘you’re right’ means that this isolated instance of raised voice would not constitute unreasonable behaviour.”
- While a letter tendered in evidence suggested the General Manager’s direction to leave work may not have been entirely motivated by concern for the Applicant’s health: “on a fine balance I am unable to conclude that it was not reasonable management action. The General Manager was in the best position to assess the state of distress of the Applicant and the risks involved.”
- The General Manager’s consideration of the Applicant’s request for a support person at meetings was not carried out in a reasonable manner as “in context there should have been a more considered and qualified response to the proposal that the Applicant not meet with the General Manager alone.”
However, Roe C did not make any orders to address this one finding of workplace bullying, as he was not satisfied that there were “repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.” This was despite the fact that it was also established that the Applicant’s health and safety was negatively impacted by the events in the workplace between September and November 2013, and that she remained on leave for a stress-related illness.
Applicant v Respondents  FWC 4198 (24 June 2014)
In this case, Deputy President Kovacic granted the request by the Respondents (a health and community services provider and two of its senior managers) for legal representation in FWC proceedings dealing with jurisdictional issues in relation to the Applicant’s claim under Part 6-4B.
The Respondents’ jurisdictional objections to the claim included arguments that:
- the Applicant is not a worker covered by Part 6-4B (rather, he is a medical practitioner providing services to the health body through a company of which the Applicant is the sole director and secretary);
- the health services provider is not a constitutionally-covered business under Part 6-4B;
- the application has no reasonable prospects of success;
- the Applicant was subjected to reasonable management action.
In Kovacic DP’s view, these were “potentially complex issues” and – combined with the “relative newness” of the FWC’s anti-bullying jurisdiction – warranted legal representation for the Respondents being granted under section 596 of the FW Act. The Respondents’ lack of familiarity with employment law and the workings of the FWC were also relevant factors, even though the Applicant was himself unrepresented.
Kovacic DP determined that legal representation would enable the Respondents’ jurisdictional arguments to be dealt with more efficiently. This was also the basis for Roe C to grant a request for representation (also by the Respondents) in The Applicant v General Manager and Company C.
Key points for employers, managers and employees
These three decisions provide useful insights into not only the substantive operation of Part 6-4B of the FW Act, but also how anti-bullying matters are being conducted in the FWC:
- For example in The Applicant v General Manager and Company C, Roe C observed that (in light of the Respondents’ calling of ten witnesses in the proceedings): “The vigorous nature of the evidence and submissions produced in response may have an impact on the prospects of a successful return to work by the Applicant.”
- It is clear from the decision in Mr Tao Sun that employees must still behave reasonably even if they believe they are subject to workplace bullying, as this does not “authorise the employee to behave in any fashion they think appropriate.”
- Therefore, employee actions such as recording meetings, behaving aggressively and accessing emails and other electronic records or files without permission are likely to be viewed negatively by the FWC.
- It is also clear from both Mr Tao Sun and The Applicant v General Manager and Company C that the workplace conduct of managers and supervisors will be subject to considerable scrutiny in FWC proceedings under Part 6-4B.
- This reinforces the need for employers to provide regular training for all employees around appropriate workplace behaviours, and training for supervisors/managers in the correct handling of bullying complaints.
- The decisions indicate that the FWC seems more relaxed about permitting legal representation in claims under Part 6-4B, as it is intended that applications for anti-bullying orders will be dealt with quickly and expeditiously.