The Fair Work Act introduced new anti-bullying provisions at the start of the year. Here’s a reminder of what does and doesn’t constitute an offence by co-workers or, in particular, management.
What is classed as bullying in the workplace?
A worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards them or a group of workers of which they are a member, and the behaviour creates a risk to health and safety.
An employee may refer to conduct that occurred before 1 January 2014 (when the Fair Work Act’s anti-bullying provisions became effective) to demonstrate bullying conduct.
The provisions apply to all ‘constitutionally covered businesses’ including all registered corporations, the Commonwealth, Commonwealth authorities and body corporates that conduct a business or undertaking. The amendments don’t apply to certain state public sector employers or unincorporated partnerships, although state work health and safety legislation continue to apply. The Defence Force and a number of federal security agencies are also excluded from the Fair Work Act amendments.
What does ‘repeatedly behaves unreasonably’ mean?
Whether behaviour is deemed unreasonable depends on whether a reasonable person, having regard to the relevant circumstances applying at the time, may see it as unreasonable. Victimising, humiliating, intimidating or threatening behaviour will generally be unreasonable.
Repeated behaviour doesn’t mean the same behaviour has to occur each time. There is no specific number of incidents required to represent ‘repeatedly’, but there must be more than one occurrence.
To be considered bullying the unreasonable behaviour must create a risk to health and safety. The behaviour doesn’t have to be the only cause of the risk, provided it was a substantial cause of the risk viewed in a common sense and practical way.
A risk to health and safety means the possibility of danger to health and safety. There doesn’t have to be actual danger to health and safety – just exposure to the chance of injury or loss that is real and not simply conceptual.
The unreasonable behaviour must have been directed towards the person or persons complaining of it.
What is not bullying under the amendments’ reference to ‘reasonable management action’?
Management action, taken for good reason and carried out in a reasonable manner, is not bullying. Management has the right to:
- Take appropriate management action and make appropriate management decisions.
- Make necessary decisions to respond to poor performance.
- If necessary, take disciplinary action.
- Effectively direct and control the way work is carried out.
- Allocate work.
- Give fair and constructive feedback on a worker’s performance.
If these actions are carried out in a reasonable manner that takes into account the circumstances of the case and don’t leave the individual feeling, for example, victimised or humiliated, they will not be regarded as bullying.
Whether management action is reasonable depends on:
- The circumstances justifying the need for the management action.
- The circumstances while the management action was being taken.
- The consequences flowing from the management action.
The emotional state and psychological health of the worker involved may also be relevant to reasonableness.
The fact that management action could have been undertaken in a more reasonable or acceptable manner is irrelevant. Management actions don’t need to be perfect or ideal to be considered reasonable. A course of action may still be ‘reasonable’ even if particular steps are not.
Reasonable action must also be lawful and not be irrational, absurd or ridiculous. The fact that the employee thinks the action is unreasonable is irrelevant (although this goes to the question of whether it poses a work health and safety risk). It’s relevant if the management action involved a significant departure from established policies or procedures in circumstances that are not reasonable.
Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action affects the worker and the circumstances in which the action was implemented.
Under the Fair Work Act, the Fair Work Commission dealt with an application when an employee alleged bullying conduct by a general manager in a major national listed company. The employee alleged the manager bullied her by, among other things, using an aggressive tone and behaviour in a meeting.
The commission ruled that, considering all of the circumstances, it was reasonable management action for the general manager to forcefully communicate in both words and body language that the way the applicant was interacting with him was unacceptable and that it could not continue.
It stated: “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. Just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable.”