Workplace notes

22 June 2015

Bullying provisions in a nutshell

In the first nine months of 2014, the Fair Work Commission (“FWC”) received more than 530 applications for orders to stop bullying but only one of those resulted in anti-bullying orders being made. Since that time, although the number of anti-bullying orders has increased, the number of applications has remained significantly lower than was expected by the FWC and the legal community…read more

This may be due to a number of reasons including the non-availability of financial compensation and that such bullying orders are premised on a continuing relationship between the applicant and the alleged bully.

The existing legal settings are as follows: –

What constitutes bullying?

There is a range of behaviour that can constitute bullying, including unjustified criticism, exclusion, isolation, unreasonable work demands, spreading derogatory or inaccurate rumours, teasing or practical jokes and aggressive behaviour. However, such behaviour only constitutes bullying under the legislation if it is “repeated unreasonable behaviour towards a worker that creates a risk to their health and safety”.

The FWC has made a number of decisions and provided some guidance on what type of conduct will constitute bullying. Broadly, there needs to be more than one occurrence of unreasonable behaviour over time, however, it’s not necessary for exactly the same specific behaviour to be repeated. The definition of what constitutes “unreasonable” is based on an objective test of all the surrounding circumstances.

There also has to be a causal link between the unreasonable behaviour and the risk to health and safety.

In its more recent decisions, FWC has now confirmed that:

  • A ‘worker’ is an individual who carries out work in any capacity for a person conducting a business or undertaking. This includes employees, contractors or subcontractors, outworkers, apprentices, trainees, work experience and volunteers.
  • Any individual can be considered to have engaged in bullying behaviour including customers of the business. They do not have to be “workers” nor do they need to be “at work” when they engage in the unreasonable behaviour. 
  • “At work” does not mean being in a workplace environment. A worker is “at work” any time that he or she is performing work, regardless of location or time of day. It includes any activity which is authorised or permitted by their employer, or in the case of a contractor, their principal. This includes being on a meal break at the workplace or accessing social media while performing work. However, the meaning of “at work” will need to be further developed over time, on a case by case basis.

During the hearing, the FWC debated the following examples: 

  •  A worker will generally be “at work” if they receive a call from their manager outside of hours whilst they are at home. However, it will “depend on the context, including custom and practice, and the nature of the worker’s contract
  •  If an individual posts bullying comments on Facebook towards a worker, the worker does not need to be “at work” when those posts were made. The unreasonable behaviour “continues for as long as the comments remain on Facebook”. Therefore, the worker need only access the comments while “at work” in order to enliven the FWC’s powers. 
  • It is unlikely that a worker is bullied “at work” if they read a Facebook post by a person with whom they have no relevant workplace connection. However the FWC avoided giving a concluded view on this example.

Reasonable management action

The Fair Work Act 2009 contains a qualification that ‘reasonable management action carried out in a reasonable manner’ does not constitute bullying. Management action can include performance management, performance reviews, counselling or disciplinary action for misconduct and investigating complaints and misconduct. However, it is unlikely to include a spontaneous criticism by an employee’s supervisor during a meeting with other colleagues.

Whether the management action is reasonable is a question of fact. It depends on the objective assessment of those involved at the time, as well as consideration of the circumstances that led to the action being taken, the situation that existed while the action was being taken and that flowed from the action, including the emotional state and psychological health of the employee involved. Whilst management actions do not need to be perfect or ideal, at the very least they must be reasonable and lawful and must not be irrational, absurd or ridiculous.

Are the anti-bullying orders effective?

In March 2014, in the decision of Applicant v. Respondent, the FWC made its first anti-bullying orders. The consent orders included requiring a male employee not to have any contact with the applicant, a female employee, without other persons being present, not to make any comments about the applicant’s clothes or appearance, not to send emails or texts to her except in emergency circumstances, and not to raise work-related issues with the applicant without first notifying senior management.

Conclusion

Employers need to be aware that bullying provisions are often used in addition to other issues such as victimisation, harassment, unfair dismissal or even adverse action. To ensure that bullying does not take place, employers need to have strong and positive policies in place, clearly stating that bullying is unlawful. It is also imperative that effective reporting mechanisms are available, providing individuals with every opportunity to report bullying behaviour. 

​Disciplinary investigations

Prior to commencing an investigation which may result in warnings or dismissal of the employee, when investigating allegations of misconduct or undertaking disciplinary action against an employee, employers should be mindful of the following guidelines:

1.  Policies – Effective policies should be a given. The policies that an employer has in place which bind employees are very important and should be clear and unambigious. If they are current and apply to the alleged actions of the employee, then they should be strictly followed. If there are no policies, the employer then has to rely on common law or provisions related to the employee’s contract of employment or other legislative provisions under the Fair Work Act 2009 or in other legislation.

2.  Suspension – Contracts of employment often contain suspension provisions, enabling suspension of employees on full pay whilst an investigation is carried out. These provisions are very useful as they provide an opportunity for the employer to investigate the situation properly and form a conclusion without the employee being involved or hindering the investigation. If the employer is forced to rely on their common law rights, the situation may become very complex. Removing the employee from the workplace also underlines or reinforces the employee’s position concerning the seriousness of the situation.

3.  Factual circumstances – It is very important to examine and take witness statements from all individuals who may have been involved or aware of the alleged misconduct as the legal position will, to some extent, be governed by the factual circumstances of what has happened and also what can be proved by the employer. As part of the investigation, and depending on the circumstances, the employee should be provided with a support person or have access to the employee assistance program if such a program exists. Once the investigation is complete, then the employee can be asked to respond to the allegations which, depending on the severity, may be in oral or written form. The decision maker should then make a decision on the factual circumstances of the case and that should be communicated to the employee concerned. All information should be well documented as it may be the subject matter of further proceedings.

4.  If in doubt – It is important for an employer to be able to access quick and accurate advice depending on their particular circumstances. If you feel that you are faced with a serious issue or problem, it’s always better to seek specific advice regarding the process. â€‹

Best practice tips for managing employee absences

Employers need to be vigilant and thorough when managing short and long term absences, particularly of ill or injured employees, with each group requiring a different approach.

Employers need to make clear and set down their expectations on short term absenteeism by implementing: 

  • requirements or policy that employees “promptly” notify their manager/supervisor or an appropriate nominated person, so far as practicable, prior to work on the particular day, or prior to taking personal leave, and then to complete a personal leave form once the leave has been taken; 
  • email and internet policy which allows the employer to monitor employee emails where abuse is suspected; 
  • policy that enables employees to be investigated and subjected to disciplinary action where leave entitlements are misused. 

 As a general rule, employers must accept documents such as medical certificates, as evidence of the illness or injury. However, there are exceptions. In some situations an employer will require further information about an injury or illness, in situations where: 

  • there are frequent or unexplained absences;
  • the duration of an absence is uncertain; 
  • there is conflicting information; 
  • work colleagues have indicated concerns as to the worker’s capacity to work; 
  • the employer is unsure or unclear if the worker’s condition allows them to perform the inherent requirements of their role; or 
  • medical information is needed to ensure the safety of the worker and their colleagues.

If an employer believes the employee will be absent for a longer period, the absence should be managed immediately, commencing initially with an invitation to the employee to meet and discuss his/hers current condition, including, when the employee believes they will be ready to return to work, and the medical evidence concerning their capacity for work.

The medical evidence should address, whether: 

  • the treating medical practitioner(s) and those performing independent medical assessments have been provided with all details of the inherent requirements (job role/description and function) of the worker’s position; 
  • the treating medical practitioner(s) and/or specialists have identified other productive duties consistent with the medical restrictions being imposed; 
  • if a medical prognosis is inconclusive, the treating medical practitioners and/or specialists have been requested to provide clarification and more information; 
  • in light of the particular injury or illness, the doctor is an appropriate specialist; and 
  • ensure that the available medical evidence is current. 

Employers need to consider that: 

  • if an employee returns to work, then every endeavour needs to be made to accommodate the worker, including the provision of reasonable services and facilities; and 
  • if an employee cannot perform the inherent requirements of their role, has been absent from work for longer than three months and hasn’t made a workers’ compensation claim, then an employer may have grounds for dismissal.