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
- 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.
