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Australia – “Do You See What I See?” The Challenge Of Proving Workplace Bullying Offers Relief For Employers

21 May, 2014

 


Ms SB [2014] FWC 2104 (12 May 2014) 


What You Need To Know

 

  • The Fair Work Commission has handed down its first substantive decision interpreting the Fair Work Act’s anti-bullying provisions. The decision considers the ‘reasonable management action’ exclusion and highlights the difficulties for an applicant in proving workplace bullying. 
  • The right to take reasonable management action in section 789FD(2) of the Fair Work Act is premised on three factors, and closely mirrors the construction of the management action exception in the Victorian, South Australian, Tasmanian and Queensland workers compensation regimes. 
  • Management action comprises “everyday actions to effectively direct and control the way work is carried out”. On this interpretation, management action in the anti-bullying jurisdiction could conceivably include nearly every action a manager would ever take with respect to a worker, provided it is reasonable. 
  • It will be reasonable to take management action if, in the context of the circumstances and the knowledge of those involved, a reasonable person would have taken the same action. 
  • Management action will be viewed as a whole, and not with a focus on each step taken.
  • Applicants bear the burden of establishing that repeated behaviour occurred and that it was unreasonable (bullying) behaviour. This is a difficult evidentiary threshold, particularly in light of ongoing employment relationships of possible witnesses. 
  • An accepted workers compensation claim does not necessarily prove a bullying claim.
  • Anonymity can and will be ordered where appropriate, preserving the identity of the applicant, the employer and other persons that may be named or be a witness in the proceedings. 
  • While the applicant in this case was unrepresented and so may not have presented her case at its best, the decision in Ms SB should nevertheless assuage many employers’ fears about this new jurisdiction. It remains to be seen if all the key factors in this case remain relevant in claims brought by represented applicants.

What You Need To Do

 

  • Educate all staff with supervisory and/or management responsibilities about how to appropriately conduct people management processes, especially workplace investigations, performance management and disciplinary action. 
  • In conducting staff education, have regard to our table of key considerations, based on Commissioner Hampton’s reasoning in Ms SB. 
  • Investigate complaints of workplace bullying in accordance with established policies and procedures unless it is reasonable to depart from them.

 

The Fair Work Commission has handed down its first substantive decision interpreting the Fair Work Act’s anti-bullying provisions which came into effect on 1 January 2014. The decision in Ms SB [2014] FWC 2104 found that there was insufficient evidence of repeated unreasonable behaviour towards an unrepresented applicant. 


The decision highlights the difficulties for an applicant in proving workplace bullying. By contrast, the employer in this case managed to resist the claim and establish that its actions constituted reasonable management action, without relying on an investigation report, over which it claimed legal professional privilege. 


The decision also suggests that management action will be viewed as a whole, and not with a focus on each step taken. This approach may indicate that the anti-bullying jurisdiction may provide even less relief for workers than previously thought. 


What Is Reasonable Management Action? 


The right to take reasonable management action in section 789FD(2) of the Fair Work Act is premised on three factors:

 

  • The behaviour must be management action;
  • It must be reasonable for the management action to have been taken; and 
  • The management action must be carried out in a reasonable manner.

This three step test closely mirrors the construction of the management action exception in the Victorian, South Australian, Tasmanian and Queensland workers compensation regimes. Yet, as Ms SB shows, the outcomes between the regimes can differ. 


What Is ‘Management Action’? 


Commissioner Hampton referred to the Explanatory Memorandum and the intention of the Legislature that management behaviour covered by the exclusion in the Fair Work Act comprises “everyday actions to effectively direct and control the way work is carried
out”. This is an extremely broad interpretation, significantly broader than similar exclusions in many of the workers compensation regimes. On this interpretation, management action in the anti-bullying jurisdiction could conceivably include nearly every action a manager would ever take with respect to a worker, provided it is reasonable.

 

When Will Management Action Be Reasonable?

 

It will be reasonable to take management action if, in the context of the circumstances and the knowledge of those involved, a reasonable person would have taken the same action. We summarise in the table on the next page the key considerations which Commissioner Hampton saw as relevant to this issue. 


Muted Relief For Employers? 


While the applicant in this case was unrepresented and so may not have presented her case at its best, the decision in Ms SB should nevertheless assuage many employers’ fears about this new jurisdiction. The decision shows that:

 

  • Anonymity – can and will be ordered where appropriate, preserving the identity of the applicant, the employer and other persons that may be named or be a witness in the proceedings; 
  • Burden Of proof On The Applicant – the applicant bears the burden of establishing that repeated behaviour occurred and that the behaviour meets the threshold to be considered unreasonable (bullying) behaviour; 
  • Evidentiary Difficulties – applicants may struggle to lead evidence against an employer in the context of ongoing working and reporting relationships; 
  • Overall Approach, Not Step By Step Focus – a failure to follow a particular process to the letter will not necessarily be detrimental to the employer if the overall approach and outcome is sound; 
  • Appointment Of External Investigators – is not unreasonable; 
  • Legal Professional Privilege Over External Investigation Reports May Be Maintained – in this case it seems the applicant’s inability to lead sufficient evidence rendered it unnecessary for the employer to rely on an external investigation report prepared by its lawyers; 
  • The Psychological Health Of The Applicant May Be Relevant – such as to determine if the alleged unreasonable management action was a substantial causal factor of the risk to health and safety; and 
  • An Accepted Workers Compensation Claim Does Not Necessarily Prove A Bullying Claim – in this case the applicant’s workers compensation claim had been accepted and yet her bullying claim still failed. This highlights the difference in breadth of the ‘reasonable management action’ qualification in the Fair Work Act compared with workers compensation regimes.

 

Key Considerations – Commissioner Hampton’s Reasoning At A Glance

 

What makes management action reasonable?  When will management action be taken in a reasonable manner?  What could amount to bullying?  What did not amount to bullying in this case? 
  • The context that led to and created the need for action
  • The circumstances while the action was being taken
  • The consequences that flowed from the management action
  • The specific ‘attributes and circumstances’ of the situation, including the worker’s mental health
  • Management action does not need to be perfect or ideal
  • Management action will be assessed on the overall outcome of that action, not each individual step
  • Management action will not be assessed on the basis of what could have been “more reasonable”
  • Any unreasonableness will be assessed objectively, not from the perspective of the worker
  • Management action must be lawful and not ‘irrational, absurd or ridiculous’
  • Management action should follow established policies and procedures unless it is reasonable to depart from them.
  • The nature of the action itself
  • The facts and circumstances giving rise to the requirement for action to be taken
  • The way in which the action impacts upon the worker
  • The circumstances in which the action was implemented
  • The making of vexatious allegations against a worker
  • Spreading rude or inaccurate rumours about a worker
  • Conducting an investigation in a grossly unfair manner
  • Complaints by co-workers
  • Management’s investigation of complaints
  • Failure to provide HR support when it was previously rejected

 

Making The Case: Insights from Geoff Giudice 


Complaints of bullying can arise in all sorts of situations, as the following facts in Ms SB demonstrate:

 

  • the applicant was a supervisor;
  • she alleged she had been bullied by members of the team she supervised, some of whom had in turn complained that the applicant was herself a bully; 
  • the applicant also alleged that she had been bullied by the employer because of the way the employer had dealt with bullying complaints against her; and 
  • both the applicant and one of her team members had been diagnosed with medical conditions related to the stress of the work environment; this was relied on as evidence of bullying.

The Commissioner took a pragmatic approach to the issues and was not prepared to make findings without a proper evidentiary basis for doing so. In rejecting much of the evidence he criticised statements which were based on second-hand information, short on detail, exaggerated or influenced by subjective considerations and refused to admit statements from persons who were not available to give evidence. Although he found some of the allegations proven, there was still insufficient evidence to establish bullying behaviour under the Act. The decision is well-reasoned and practical and it is to be hoped that the Commission follows a similar approach in other anti-bullying applications.

 

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For further information, please contact:

 

Vince Rogers, Partner, Ashurst
vince.rogers@ashurst.com 


Geoffrey Giudice, Ashurst
geoffrey.giudice@ashurst.com


Julie Mills, Ahsurst
julie.mills@ashurst.com


Daniel Delimihalis, Ashurst
daniel.delimihalis@ashurst.com

 

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