This month we look at the Fair Work Commission’s (FWC) ‘stop bullying’ jurisdiction and explain what employers need to know about the increasing prevalence of these claims being made by employees.

We explore what constitutes ‘bullying’ under the regime and give examples of what does not meet the definition.

We also set out some important lessons arising from the recent case of Karki (2019) FWC 3147, in which the Senior Deputy President noted a concern that the ‘stop the bullying’ jurisdiction is sometimes abused by employees, looking to shield themselves from justifiable disciplinary outcomes.

Who is covered by the anti-bullying laws?

A person will be covered by the anti-bullying laws under the Fair Work Act 2009 (the Act) if they are a ‘worker’ (as defined in the Work Health and Safety Act 2011 (Cth)) and experience bullying while ‘at work’ in a constitutionally covered business.

A ‘worker’ includes employees, independent contractors, sub-contractors, employees of labour-hire entities, outworkers, apprentices, trainees, students and volunteers (with some exceptions for volunteer associations).

What is bullying?

A worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member and the behaviour creates a risk to health and safety.

What amounts to ‘unreasonable’ behaviour is not specifically defined in the Act.
However, the Act provides that ‘reasonable management action’ carried out in a ‘reasonable way’ will not constitute bullying.

The criteria for establishing bullying can therefore be summarised as follows:

1. there must be ‘unreasonable’ behaviour;
2. the unreasonable behaviour must occur ‘at work’;
3. the unreasonable behaviour must be repeated behaviour;
4. the behaviour must create a risk to health and safety; and
5. the behaviour must not constitute reasonable management action taken in a reasonable way.

Some examples of bullying can include:

• the making of vexatious allegations against a worker;
• spreading rude and/or inappropriate rumours about a worker; and
• conducting an investigation in a grossly unfair manner.

It can also include repeated acts of intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, singling-out, malicious pranks, abuse (physical, verbal and emotional), belittling, harassment, isolation, ganging-up, innuendo, disrespect, victim-blaming, discrimination and so on.

It’s important to note that bullying ‘at work’ is not limited to the physical confines of the workplace, but can extend to any other place in connection with the individual’s work.

What is reasonable management action?

Management action can include managerial decisions, performance and disciplinary matters, allocation of work, performance improvement plans or directions as to how work is to be carried out.

Whether or not such management action is ‘reasonable’ will require an objective assessment of the action in the context of the relevant circumstances of the case.

What is the FWC stop bullying process?

A worker can file an Application in the FWC seeking orders that an employer be prohibited from bullying them.

Once an Application is filed, the matter will be listed for mediation before the FWC. If the matter is not resolved, the matter will be listed for either a conference or hearing before the FWC.

This process can be time consuming and costly for employers defending these Applications.

The increasing prevalence of employees abusing the FWC stop bullying regime

While the FWC ‘stop the bullying’ regime was introduced with good intentions, it has unfortunately become the case that some employees are abusing the system.

Where an employee is subject to management action such as a disciplinary process, an employee may elect to file an Application against their employer alleging that they are being bullied, to disrupt the process. This often leads to delays with the disciplinary process while the employer must deal with the bullying allegations, as occurred in the recent case of Karki [2019] FWC 3147 (Karki).

What happened in Karki?

When Karki, an employee at The Star in Sydney, was disciplined for breaching company policy by using his personal mobile phone while on duty, he responded by filing an Application in the FWC.

Karki alleged that The Star had bullied him during the incident in question by yelling at him in front of others. He also alleged that he did not breach the company policy, because sending a text message was not the same thing as ‘using’ the phone. He also claimed that subsequent to the incident, he was bullied by The Star when it raised other performance issues with him.

On another occasion, Karki was issued with a written warning for spitting in a bin while on duty. Karki argued this also amounted to bullying.

The Star opposed the Application on the basis that they had engaged in reasonable management action. Ultimately, the FWC agreed with The Star.

Deputy President Sams found Karki had filed the Application as a means to shield or deflect justifiable disciplinary outcomes.

“…I have been troubled that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose of which it was never intended by the legislature. This has been a strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or (sic) performance management processes implemented by an employer as a reasonable management response to incidents of misconduct or poor performance. This case is an obvious example of this improper purposes.”

Lessons for employers

Employers cannot ignore their statutory health and safety obligations to prevent and address bullying in the workplace. It is imperative that you take reasonable steps to identify and reduce risks, including to respond appropriately whenever a bullying complaint is made.

Employers should however be weary that some employees may use the FWC anti-bullying regime to thwart legitimate management action. If this occurs, it will be crucial to seek specialist employment law advice to make sure you manage the situation effectively.

Aitken Legal frequently assists employers with meeting their workplace obligations in the following ways:

• providing training on workplace bullying;
• drafting workplace bullying, harassment and discrimination policies;
• advising on reasonable management action, disciplinary processes and termination of employment, including working with our client through each step of the process;
• appearing before the FWC to defend workplace bullying applications; and
• negotiating suitable outcomes to minimise risk, exposure and costs.

Steps employers should take

The Karki case serves as a useful reminder for employers to review and update their employment contracts and workplace policies.

This involves making sure you have appropriate policies dealing with:

• Workplace Bullying
• Discrimination and harassment;
• Workplace health and safety;
• Social media;
• Drugs and alcohol (including testing); and
• Dispute resolution and grievance management.

Contact us for assistance

If you would like advice in relation to any of the matters outlined in this Employment Update, please contact one of our Employment Lawyers, who are ready to assist.