Fair Work Commission

Theme: Risk that the worker will continue to be bullied at work

For the Commission to issue a stop-bullying order, it must be satisfied the unreasonable behaviour will continue. These decisions looked at the concept of ongoing risks from a number of different perspectives.

When an employer had taken steps to address workplace bullying but had not eradicated the workplace culture that enabled it

Sharon Bowker, Annette Coombe and Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The, Victorian Branch and Others [2015] FWC 7312 – Deputy President Gostencnik – 16 November 2015

This case examined the risk of future bullying faced by employees where the Commission had found the culture of their workplace had enabled bullying conduct.

Deputy President Gostencnik found three DP World stevedores had been bullied at work over a two year period. The three stevedores had given evidence of 212 complaints and concerns they had raised with their employer and alleged 37 largely uncontested incidents of bullying by co-workers and Maritime Union of Australia (MUA) members and representatives.

The Deputy President found the bullying had been carried out by 'those persons who subscribe to, or support, the existence of a system of authority and control at the West Swanson Terminal which stands apart from DP World, the employer which stevedores are paid to serve, and a breach of norms of behaviour established and enforced through such a system.'

The three applicants, who at the time of the hearing had been absent from the workplace for significant periods, all maintained there was a risk they would be bullied if they returned to work. They submitted that the terminal's 'code of silence' and workplace culture, inadequate and incomplete workplace investigations, and inadequate return to work plans and risk assessments had not been dealt with and continued to manifest at the workplace.

The Deputy President accepted DP World had taken steps to address workplace bullying and 'other unacceptable workplace behaviour', and this had contributed to a 'diminution of the risk of the occurrence of bullying at work, both generally and specifically in relation to the applicants. He also agreed it had not been established that any of the three faced an imminent risk to their health and safety upon a return to work.

However, he said the question for the Commission was whether it was satisfied that when they returned there was a risk – which had to be 'real, but 'need not be imminent' – that any of them would be bullied by the individual or group of individuals found to have engaged in bullying behaviour.

In finding that risk existed for all three applicants, the Deputy President said he did not accept that 'the steps taken by DP World have had the effect of eradicating the system of authority and control at WS Terminal which stands apart from DP World, as earlier described. Moreover, whilst some individuals who subscribe to the system and who engaged in bullying conduct were identified and dealt with by DP World, other individuals within the group were unknown and remain so.'

He found the risk of future bullying was 'a real risk that is founded on the evidence of the Applicants' past experiences and recognition that the culture endemic in the system, though changing, will take more time and effort to shift, change and ultimately eradicate'.

Deputy President Gostencnik issued orders against DP World but conditionally accepted undertakings in lieu of orders against the MUA.

Where a worker's employment has been terminated

Garth Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Adrian Palm; Garth Atkinson v Killarney Properties Pty Ltd T/A Perm-A-Pleat Schoolwear and Michael Palm [2015] FWCFB 6503 – Full Bench – 14 October 2015

This case looked at whether the Commission can deal with an application for an order to stop bullying where the worker's employment has been terminated. While the decision in this case to dismiss the application on the basis that the worker was no longer 'at risk' was upheld, a Full Bench considered this would not always necessarily be appropriate and that there may be other relevant considerations, including the prospect of reinstatement through other proceedings.

At the time the worker's employment was terminated, the Commission had conducted conferences and hearings on his anti-bullying applications but had not issued a decision or orders. In dismissing the applications, Commissioner Williams said he was not satisfied there was a risk the worker would be bullied 'at work' given his employment had been terminated.

In his application to appeal, the worker submitted among other things that the Commission erred in deciding it could not exercise its discretion under s789FF of the Fair Work Act to make an order, particularly given his employment had been terminated after he applied for orders.

The Full Bench refused leave to appeal, finding no error in the decision that the applications had no reasonable prospects of success. The Full Bench also concluded that the Commissioner's exercise of his discretion to dismiss the applications was reasonably open to him, 'notwithstanding [the applicant's] submissions, which the Commissioner recognised, about other forms of relief in respect of his s.789FC applications, including a recommendation and so on, instead of an order to stop bullying.'

The Full Bench held the fact the worker had lodged a general protections application before a court that had the power to make a reinstatement order did not preclude the Commissioner finding that the risk of bullying 'at work' was not satisfied.

The Full Bench concluded that it was 'not suggesting that it will always be appropriate for the FWC to dismiss a s.789FC application where an employee is dismissed from their employment. Depending on the circumstances in each case there may be a number of relevant considerations, including the prospect of reinstatement through other proceedings, which could warrant the FWC dealing with a s.789FC application notwithstanding the dismissal of the employee.'

Whether to issue an order – satisfied that there was unreasonable behaviour but steps taken to mitigate the risk of the behaviour continuing

L.P. [2015] FWC 6602 and L.P. [2016] FWC 763 – Commissioner Hampton – 4 November 2015, 12 February 2016

This case looked at whether the Commission should issue an order in a situation where it found 'on fine balance' that bullying conduct had occurred.

In Commissioner Hampton's first decision on the matter, he found there had been 'potentially relevant unreasonable conduct', including conduct engaged in by other workers at the workplace and a lack of management practices to set and enforce appropriate standards of behaviour. However, the Commissioner was not initially persuaded that he could or should make orders as, among other things, the persons who engaged in the unreasonable behaviour were no longer in the workplace and the employer had put into place steps that 'might well otherwise have formed part of an order and which will have the effect of reducing whatever risk was otherwise present'.

The Commissioner therefore considered it appropriate to hear further from the parties on this point, and the applicant subsequently confirmed that she did seek orders from the Commission.

On hearing further from the parties and addressing in turn each of the considerations for issuing an order, the Commissioner did not consider that the 'making of orders… would be conducive to the constructive resumption of working relationships'. In making this decision, the Commissioner noted the extent of the positive measures the employer had put in place and the changes that had occurred at the workplace as a result of dealing with the matter.

Test for risk of bullying continuing where persons named have changed roles

Keiko Adachi [2016] FWC 1498 – Commissioner Gregory – 16 March 2016

This case found that the test for determining whether there was a risk that a worker would continue to be bullied at work was a 'more substantial one' than the 'objectively and discernibly identifiable' risk of not coming into immediate contact with the person who was alleged to have engaged in the unreasonable behaviour.

Qantas submitted there was no risk the flight attendant who had made the application would be bullied at work if she returned because she would not be 'at work' with any of three individuals she named in her anti-bullying application. This was because the circumstances that caused her to be in contact with each of them had changed. Qantas submitted the test the Commission should apply to the risk of bullying continuing was that it was 'objectively and discernibly identifiable'.

Commissioner Gregory, however, said the test was a 'more substantial one'. He said he was satisfied that one of the three individuals the flight attendant named – the airline's head of cabin crew and international lounges, who had overall responsibility for about 2,500 flight attendants – was 'in a position where he could through various means potentially be involved in bullying [the worker] "at work." This could occur primarily because of his management responsibilities in regard to her position.'

Commissioner Gregory emphasised that no findings about bullying at work by any of the three named individuals had been made at that point.

Theme: Expanding on the definition of when a worker is bullied at work

The following cases looked at different elements of the definition under the Act of when a worker is bullied at work.

Reasonable management action

Mohamed Aly [2015] FWC 4419 – Commissioner Bissett – 10 August 2015

Mr Mohamed Aly v Commonwealth Securities Limited and others [2015] FWCFB 6895 – 30 October 2015

This case looked at what behaviour may be considered 'reasonable management action carried out in a reasonable manner', which is not included in the definition of bullying at work under s.789FD of the Fair Work Act.

The applicant, a Commonwealth Securities Limited (CommSec) Customer Assist Officer (CAO), had sought orders against the organisation and his two managers, submitting he had been bullied during a performance management process by being held to a higher standard than other CAOs and was being micro managed.

In dismissing his application for orders, Commissioner Bissett found there were reasonable grounds to twice place him on performance plans, and to extend the second plan. She was also satisfied he was not held to a higher standard than any other CAO.

The Commissioner said she was not convinced that the number of, or conduct of, meetings about the worker's performance indicated that he was being 'micro-managed' and that they were not 'unreasonable, considered overall and did not constitute bullying', though she did consider more generally that 'a sense of being over managed is a matter to be aware of in dealing with performance issues for all staff'.

A Full Bench in October 2015 declined to grant the worker permission to appeal the decision.

Definition of bullying – repeated unreasonable behaviour

Harpreet Singh [2015] FWC 5850 – Commissioner Hampton – 28 August 2015

This case confirmed that the unreasonable behaviour that is the subject of an anti-bullying application must have happened more than once to fit within the definition of bullying at work under s. 789FD of the Fair Work Act.

The worker alleged that he had been physically and verbally assaulted while at work. The respondent employers denied this occurred and submitted that even on the applicant's account the conduct he complained of occurred only once and some six months previously.

Citing S.B ([2014] FWC 2104) and Amie Mac ([2015] FWC 774), Commissioner Hampton said it was clear that 'for the behaviour to be "repeated unreasonable behaviour" it cannot be a single occurrence. The definition implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. That behaviour may also be undertaken by an individual or a group of individuals and be directed towards the applicant worker or a group of workers to which the applicant belongs. The unreasonable behaviour must however be repeated.'

Commissioner Hampton said that while the alleged verbal and physical conduct would, if ultimately found to have occurred, have the 'requisite real possibility of danger to health and safety and would not be reasonable behaviour in a workplace of the nature conducted by CCA', the worker had not alleged that there had been any other incident or form of unreasonable conduct by the CCA employee, or any other individual, towards him capable of constituting repeated unreasonable behaviour. In that case, the Commissioner said it was important to note that the application relied on the alleged conduct of one employee, and on a single occurrence.