These passages from a stop bullying case in the Fair Work Commission contain a number of very useful observations about the legal principles involved in such cases.
“Statutory framework
[6] Section 789FF of the FW Act confers on the Commission a broad power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent a worker from being bullied at work.
[7] In order for the Commission to exercise its power under s 789FF of the FW Act to make any order it considers appropriate in respect of the Application, there are three conditions that must be met:
(a) first, Mr Myors must have made an application under s 789FC of FW Act, which provides that “a worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF”;
(b) secondly, the Commission must be satisfied that Mr Myors has been bullied at work by an individual or group of individuals; and
(c) thirdly, the Commission must be satisfied there is a risk that Mr Myors will continue to be bullied at work by the individual or group.
[8] Section 789FD of the Act sets out the test for establishing whether a person has been bullied at work. It provides as follows:
“(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 behaved unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”
[9] The test is objective. What is reasonable is a question of fact. Behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable.2
[10] It is apparent from s 789FD of the FW Act that only individuals can engage in bullying behaviour. The FW Act does not envisage an employer (in an employment relationship) or a principal (in a contracting relationship) engaging in bullying behaviour unless they are an individual. However, if the Commission is satisfied that a worker has been ‘bullied at work’ within the meaning of s 789FD and it is otherwise appropriate to do so, the Commission can make orders to stop bullying which are directed at the individuals involved in the bullying behaviour and the worker’s employer or principal.
[11] The expression ‘repeatedly behaved unreasonably’ in s 789FD(1)(a) of the FW Act is to be interpreted and applied with reference to the policy or purpose of Part 6–4B of the FW Act, which is to establish a mechanism by which the bullying of workers at work may be stopped.
[12] A one-off incident will not be a sufficient basis for the making of an application to the Commission.3 Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of ‘repeated’ behaviour, nor does the same specific behaviour have to be repeated.4 The statutory provision requires repeated unreasonable behaviour by the individual or a group of individuals towards the applicant worker or a group of workers to which the applicant belongs.5
[13] In Mac v BOQ,6 Vice President Hatcher (as his Honour then was) provided (at [99]) the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work”:
“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victimblaming and discrimination.”
[14] Section 789FD(2) of the FW Act provides that a worker will not be bullied at work if the alleged behaviour constitutes reasonable management action carried out in a reasonable manner.
[15] The Explanatory Memorandum relevantly provides as follows in relation to s 789FD(2) of the FW Act: 7
“New section 789FD – When is a worker bullied at work?
…
- The Committee also found that balanced against this definition is the need for managers to be able to manage their staff. New subsection 789FD(2) is included to clarify that reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’.
- Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.”
[16] The expression ‘management action’ is not confined only to managerial decisions but encompasses a wider range of conduct or behaviour which affects an employee, including such things as performance and disciplinary matters, the allocation of work and the way in which work is to be carried out.8
[17] To determine whether the action constitutes ‘reasonable management action’ it is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”.9 The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”10 I adopt Commissioner Hampton’s explanation of these concepts in GC (at [56]):
“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.”
[18] As to the power to dismiss an application for orders to stop bullying under s 587(1)(a) of the FW Act on the basis that it has no reasonable prospects of success, in Spencer v The Commonwealth of Australia,11 the majority (Hayne, Crennan, Kiefel and Bell JJ) of the High Court of Australia considered the phrase, ‘no reasonable prospect’ in the context of s 31A of the Federal Court of Australia Act 1976 (Cth). That section relevantly provides:
“(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.”
[19] In that case, their Honours said:
“In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”,
“untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”12
[20] The observations in Spencer are apt to apply to the exercise of power under s 587(1)(c) of the FW Act. “
Application for an order to stop bullying Myors [2024] FWC 2744 delivered 2 October 2024per- Saunders DP