The prop­er scope of the anti-bul­­ly­ing jurisdiction

Strong Words from the FWC Bench

In the recent deci­sion of Tan­ka Jang Kar­ki [2019] FWC 3147, which dealt with an appli­ca­tion to the Fair Work Com­mis­sion (FWC) for a stop bul­ly­ing order, Deputy Pres­i­dent Sams took the oppor­tu­ni­ty to express dis­qui­et about the way in which some appli­cants use the anti-bul­ly­ing jurisdiction.

The appli­cant in the case was an employ­ee sub­ject to a dis­ci­pli­nary process. Against that back­drop, Deputy Pres­i­dent Sams observed:

“In my opin­ion, it is not accept­able to use the stop bul­ly­ing juris­dic­tion of this Com­mis­sion as a shield or stalk­ing horse, to pre­vent, delay or deflect jus­ti­fi­able dis­ci­pli­nary out­comes, or to claim that dis­ci­pli­nary out­comes them­selves repeat­ed unrea­son­able behav­iour, con­sti­tut­ing bul­ly­ing. It demeans and under­mines the impor­tant work of the Act’s stop bul­ly­ing pro­vi­sions to pre­vent work­place bul­ly­ing. On one view, such con­duct might be said to be per­ilous­ly close to an abuse of process.”

Deputy Pres­i­dent Sams continued:

“For some time, I have been trou­bled that the impor­tant and ben­e­fi­cial pur­pose of the stop bul­ly­ing juris­dic­tion of the Com­mis­sion is being used for a pur­pose for 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 per­for­mance improve­ment 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 purpose.”

These com­ments are an affir­ma­tion of lim­i­ta­tions that should be clear from the terms of the rel­e­vant pro­vi­sions in the Fair Work Act (Act).

The test of when a work­er is ​‘bul­lied at work’ for the pur­pose of the anti-bul­ly­ing juris­dic­tion is set out in sec­tion 789FD of the Act, which provides:

789FD When is a work­er bul­lied at work

1. A work­er is bul­lied at work if:
   

(a) while the work­er is at work in a con­sti­tu­tion­al­ly-cov­ered business:

(i) an indi­vid­ual; or

(ii) a group of individuals;

repeat­ed­ly behaves unrea­son­ably towards the work­er, or a group of work­ers of which the work­er is a mem­ber; and

(b) that behav­iour cre­ates risk to health and safety.

to avoid doubt, sub­sec­tion (1) does not apply to rea­son­able man­age­ment action car­ried out in a rea­son­able manner.

The leg­is­la­tion could not be clear­er in estab­lish­ing that there needs to be ​‘unrea­son­able’ behav­iour to enliv­en the anti-bul­ly­ing juris­dic­tion. First, the word ​“unrea­son­ably” is used in s.789FD(1) and then the require­ment is repeat­ed and elab­o­rat­ed upon in s.789FD(2) which states the juris­dic­tion does not apply to ​‘rea­son­able man­age­ment action car­ried out in a rea­son­able man­ner’. (The leg­isla­tive drafters were wise­ly more con­cerned with clar­i­ty than pos­si­ble claims of tautology.)

In the Tan­ka Jang Kar­ki case, Deputy Pres­i­dent Sams cites with approval the analy­sis of what con­sti­tutes ​‘rea­son­able man­age­ment action’ in the con­text of a stop bul­ly­ing appli­ca­tion by Com­mis­sion­er Hamp­ton in Ms SB [2014] FWC 2104 as fol­lows:

“[51] The test is whether the man­age­ment action was rea­son­able, not whether it could have been under­tak­en in a man­ner that was ​‘more rea­son­able’ or ​‘more accept­able’. In gen­er­al terms this is like­ly to mean that:

man­age­ment actions do not need to be per­fect or ide­al to be con­sid­ered reasonable;

• a course of action may still be ​‘rea­son­able action’ even if par­tic­u­lar steps are not; 
• to be con­sid­ered rea­son­able, the action must also be law­ful and not be ​‘irra­tional, absurd or ridiculous’;

• any ​‘unrea­son­able­ness’ must arise from the actu­al man­age­ment action in ques­tion, rather than the applicant’s per­cep­tion of it; and
• con­sid­er­a­tion may be giv­en as to whether the man­age­ment action involved a sig­nif­i­cant depar­ture from estab­lished poli­cies or pro­ce­dures, and if so, whether the depar­ture was rea­son­able in the circumstances.

[52] For the cir­cum­stances in s.789FD(2) of the FW Act to apply, the man­age­ment action must also be car­ried out in a ​‘rea­son­able man­ner’. Con­sis­tent with the approach above, what is ​‘rea­son­able’ is a ques­tion of fact and the test is an objec­tive one.

[53] 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 impacts upon the work­er and the cir­cum­stances in which the action was imple­ment­ed and any oth­er rel­e­vant matters.

[54] All of the require­ments of s.789FD(1) must be read togeth­er. In terms of the issues in dis­pute in this case, this means that the Com­mis­sion must con­sid­er whether an indi­vid­ual or group of indi­vid­u­als have repeat­ed­ly behaved unrea­son­ably towards the appli­cant and whether that behav­iour has cre­at­ed a risk to health and safe­ty. A pos­i­tive find­ing on each of these ele­ments, and if appro­pri­ate, a find­ing that the cir­cum­stances con­tem­plat­ed in s.789FD(2) of the FW Act do not apply to the behav­iour, must be made for the Com­mis­sion to find that the appli­cant work­er has been bul­lied at work.”

The End of Cre­ative Anti-Bul­ly­ing Applications?

The anti-bul­ly­ing juris­dic­tion does not offer (nor is intend­ed or designed to offer) a blan­ket pro­tec­tion from feed­back, crit­i­cism or dis­ci­pli­nary action that a work­er might find unpleas­ant, or even dis­tress­ing. The leg­is­la­ture and FWC have recog­nised that work­places often are, by neces­si­ty, robust envi­ron­ments in which employ­ers retain a strong man­age­r­i­al pre­rog­a­tive to address per­for­mance and con­duct issues with employ­ees that may arise. In deter­min­ing rea­son­able­ness, the FWC will exam­ine the rel­e­vant con­duct objec­tive­ly rather than through the sub­jec­tive lens of the work­er sub­ject to the rel­e­vant process. 

The mere adop­tion of a per­for­mance man­age­ment or dis­ci­pli­nary process will not, of itself, con­sti­tute bul­ly­ing, and respon­dents defend­ing such a claim may well sub­mit it falls into the cat­e­go­ry iden­ti­fied by Deputy Pres­i­dent Sams and should be giv­en short shrift by the FWC.

In past arti­cles, I have raised the prospect of using the anti-bul­ly­ing juris­dic­tion as an ​‘injunc­tion’ in cas­es of per­for­mance man­age­ment or dis­ci­pli­nary pro­ceed­ings (as occurred in the case Lynette Bay­ly [2017] FWC 1886) or even as a more agile alter­na­tive to the sex­u­al harass­ment process in the Aus­tralian Human Rights Commission.

Notwith­stand­ing the com­ments from Deputy Pres­i­dent Sams, as a gen­er­al propo­si­tion these options may remain very much open, but only where the work­er mak­ing the appli­ca­tion has been sub­ject to suf­fi­cient­ly egre­gious or rep­re­hen­si­ble con­duct (with cogent sup­port­ing evi­dence – lack­ing in the Tan­ka Jang Kar­ki case) to con­vince the FWC that the adopt­ed process is not ​‘rea­son­able man­age­ment action con­duct­ed in a rea­son­able man­ner’ but some­thing (to adopt the lan­guage in Ms SB) so ​‘irra­tional, absurd or ridicu­lous’ that it war­rants the FWC inter­ven­ing. The obser­va­tions of Deputy Pres­i­dent Sams don’t estab­lish new prin­ci­ples or tests but remind prospec­tive appli­cants (and their rep­re­sen­ta­tives) that the leg­is­la­tion sets a high bar.