Workplace bullying decision of Fair Work Commission

This is the reasoning of a very experienced Commissioner of the Fair Work Commission in rejecting an application for an order to stop bullying in the workplace. It is a concluding extract from the decision.

“Legislation

“[127] Section 789FD of the Act prescribes when a worker is bullied at work. The section set out below.

“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 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.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally-covered business.”

[128] Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable. In other words, it is an objective test. The fact that someone feels they are being bullied is of course not the test.

[129] The bullying behaviour must create the risk to health and safety.

[130] A worker is bullied at work if, while the worker is at work, someone repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

[131] Expressly however this does not apply to reasonable management action carried out in a reasonable manner.

[132] Repeatedly behaving unreasonably involves the existence of continuing unreasonable behaviour, and may include a range of different behaviours over a period of time. There is no specific number of incidents required for the behaviour to be “repeated”, provided there is more than one occurrence.

[133] The requirement that there is a risk to health and safety means the possibility of danger to health and safety, and is not confined to cases where the unreasonable behaviour presents an actual danger to an employee’s health and/or safety.

[134] The ordinary meaning of “risk” is exposure to the chance of injury or loss. The risk is however required to be real and not simply conceptual. The onus is on the applicant to prove this.

[135] Also the requirement is that that the bullying behaviour must create the risk to health and safety meaning that, there must be a causal link between the unreasonable behaviour and the risk.

[136] Finally, before the Commission is able to make orders to stop bullying, it must also be satisfied that the circumstances are such that the employee will continue to be bullied at work by that particular individual complained about.

[137] In considering the terms of an order the Commission might choose to make it must take into account any outcomes arising out of a grievance procedure available to the worker.

Repeated unreasonable behaviour?

[138] Turning then to consider the facts in this matter in the context of the legislation above, I accept the evidence is that when Mr Homan is rostered on to be the Applicant’s Manager she is generally allocated more work that she characterises as heavy than she is allocated by other Managers. I also accept the Applicant’s evidence that Mr Homan does not directly assist her doing this work as much as other Managers do, nor apparently does he communicate to her his appreciation of her work as often as other Managers do.

[139] Mr Homan as the Assistant Manager of the Fruit and Vegetable Department is responsible for running that Department as he thinks best. It is unsurprising that not all of the Managers running the same Department do this in exactly the same way. Consequently, it is unsurprising that the Applicant’s experience working under different Managers is different.

[140] The Applicant’s preference for how Managers other than Mr Homan allocate work to her and interact with her does not demonstrate in any way that his management approach is wrong or incorrect. It could be that other employees prefer Mr Homan as their Manager for other reasons.

[141] Unfortunately, it is not uncommon for employees to look at others in their workplace and feel that by comparison they are being treated unfairly by their Managers. Often this view is based on a limited appreciation of the multiple interacting factors influencing their Managers’ decisions and actions.

[142] The equal distribution of tasks between all employees is a one-dimensional perspective which will often not be the best option for the operation of a business.

[143] It is also not uncommon for individual employees to have strong opinions about how work should be undertaken and that their Managers are managing poorly.

[144] In this case perhaps there is an opportunity for Mr Homan to improve his management approach.

[145] However, the fact that some action could have been conducted differently, or in a more reasonable manner, does not mean that action was unreasonable. 3

[146] The Applicant has not been subject to any criticism by Mr Homan let alone warnings or disciplinary action about her performance. Rather, she is recognised by Mr Homan as a good worker.

[147] The evidence is that the Applicant sometimes doesn’t take her breaks or a lunch break, and sometimes doesn’t drink water to avoid having a toilet break. However, nobody has told her she shouldn’t take these breaks.

[148] Unfortunately, it seems that the Applicant’s positive work ethic, which she would normally be applauded for, is in this case counterproductive. She is at times her own worst enemy.

[149] Not taking breaks or drinking water doesn’t allow her to rest and refresh and likely contributes to her feeling physically tired and overwhelmed at times. The Applicant is entitled to these breaks and should take them.

[150] Significantly there is no evidence before the Commission that Mr Homan’s allocation of work to the Applicant nor how he assists her and otherwise interacts with her is motivated by malice towards the Applicant or is otherwise done in bad faith.

[151] Consequently, considering all of the evidence and the circumstances in this case my decision is that Mr Homan has not behaved unreasonably towards the Applicant.

[152] Separately, I am satisfied that Mr Homan’s allocation of work and other interactions with the Applicant was reasonable management action carried out in a reasonable manner.

Risk to health and safety?

[153] Had the Commission concluded that the Applicant had been subjected to repeated unreasonable behaviour it would have also been necessary for the Commission to be satisfied that this behaviour created a risk to health and safety. For completeness I will also consider this issue.

[154] The onus is on the Applicant to prove the repeated unreasonable behaviour created a risk to health and safety.

[155] The evidence regarding a risk to health and safety was limited to one radiology report which said nothing about the Applicant’s work or workload causing her health problems. Consequently, there is no proper basis for the Commission to conclude that the behaviours complained of by the Applicant created a risk to health and safety.

[156] So it is that had the Commission been otherwise persuaded that the Applicant had been repeatedly subjected to unreasonable behaviour the absence of that behaviour having created a risk to health and safety would have resulted in a conclusion that she had not been bullied at work within the meaning of the Act. 4

Conclusion

[157] The Applicant has not demonstrated that she has been subjected to repeated unreasonable behaviour at work.

[158] The behaviour about which she complains was reasonable management action carried out in a reasonable manner.

[159] The behaviour about which the Applicant complains did not create a risk to health and safety.

[160] Consequently, within the meaning of section 789FD of the Act the Applicant is not a worker who has been bullied at work.

[161] The Commission must now dismiss this application and an order [PR737794] to that effect will be issued.”

Extract from Application for an order to stop bullying – Liu (2022) FWC 175 delivered 28 January 2022 per Williams C