So what can Fair Work do to stop Bullying?

Key learnings for employers

There have been an increasing number of ‘stop bullying’ applications with many lodged in response to legitimate management actions such as performance management.
An Applicant does not need to show multiple different behaviours but does need to show repetition. Once incident does not fall within the definition of bullying. One type of bullying behaviour (if unreasonable) repeated multiple times is likely to constitute bullying.
The Respondent employer has a vicarious liability for the actions of an individual manager and a duty to provide a safe place of work for the Applicant.
The Act states a worker is not bullied if the alleged bullying was reasonable management action and that it was carried out in a reasonable manner. Employers need to review how performance management is undertaken to avoid the hassle of going through a hearing to vindicate management actions.

Bullying applications are becoming increasingly common with individual employees lodging applications against their employer or individual managers while they are still employed. (It needs to be acknowledged that many of these cases do not succeed as they are often in response to legitimate management actions such as performance management.)

In this case example we have the Applicant, a Chief Financial Officer (CFO), who had accused the General Manager of ‘relentless bullying and harassment’. The CFO claimed the bullying had resulted in severe anxiety, sleep issues and immense mental pressure.

The Fair Work Act and Bullying

The Fair Work Act (2009) states that ‘workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker, a group of workers at work and that behaviour creates a risk to health and safety.’

The ‘individual’ could be another employee at any level or any other person such a customer, a supplier or even a visitor to the workplace. In most cases it is likely to be another employee.

The Act requires ‘repeated’ behaviour and may include a range of different behaviours.

‘Unreasonable’ behaviour is behaviour that a reasonable person would regard as unreasonable. It is an objective test of the actual behaviour not taking into account motives or reasons for that behaviour.

The Act states a worker is not bullied if the alleged bullying was reasonable management action and that it was carried out in a reasonable manner.

From the case law the following behaviours would be classed as bullying:

• Unreasonable and excessive work expectations

• Intimidating and aggressive conduct

• Victimisation of an employee

• Humiliating or belittling comments

• Disseminating malicious rumours

• Exclusion from work related events

• Practical jokes, initiations

From Conference to Full Hearing

In the above case the matter proceeded from the initial Conference to a full Hearing in the Fair Work Commission before Deputy President Dobson.

The CFO had reported directly to the Managing Director, Mr Dodeja, of the business for 7 years. After acquiring another business called Bluestar Security in 2023, the Managing Director appointed Mr Moss (from Bluestar) as Group General Manager of the combined organisation and retained the existing CFO’s reporting line to himself.

After the Applicant filed the stop bullying application the Commission scheduled the initial conference. Mr Moss indicated that he was in the process of lodging a Workers Compensation claim and that he was too unwell to attend.

Following the initial Conference the Deputy President issued Directions for the matter to proceed to Hearing and stated that Mr Moss was required to comply with the Directions and attend the hearing. In response Mr Moss’s treating Psychologist provided an email seeking for him to be excused from the hearing. The DP responded requesting further medical evidence to justify any adjournment due to his inability to attend. Mr Moss did not respond.

Mr Moss later responded claiming he would not attend due to stress and anxiety caused by working with Mr Dodeja, and the Applicant (the CFO).

The matter proceeded to hearing without the attendance of Mr Moss.

During the hearing the CFO alleged the following unreasonable conduct towards her: (decision extract)

• Constantly questioning her capabilities, dominating discussions and making efforts to undermine her authority;

• The tone of emails and telephone calls to her were hostile and demanding causing a great deal of unwarranted stress;

• Making repeated attempts to change the organisation structure of the business removing staff whom she managed, her duties and responsibilities;

• Making repeated attempts to have her report to him rather than to Mr Dodeja; and

• Giving her demanding work with unachievable deadlines and making repeated unreasonable demands;

The CFO also provided documented evidence, including multiple emails from Mr Moss, to support the above assertions. Mr Moss had sent a number of emails, raising concerns about the CFO’s attitude, while he was on stress leave just prior to the initial Commission conference.

The Commission noted the language of the emails showed an intent to provoke a reaction from the CFO in response.

The CFO then outlined the personal impact of the above behaviour including severe anxiety, inability to sleep, deep distress about her job security and future with the business, humiliation in front of others, feeling immense mental pressure. She stated she was deeply unhappy and heading towards developing severe depression.

The CFO also informed the hearing that her personal phone number had been shared with contractors causing considerable stress and concerns about the company’s handling of employee’s personal information.

The Managing Director, Mr Dodeja, to whom both Mr Moss and the CFO reported, was an employer witness and provided very honest responses in the hearing. He stated that he was concerned about Mr Moss’s behaviour towards the CFO. He also stated he had paid a lot of money to acquire Bluestar Security together and their clients which were at risk of being lost if Mr Moss resigned from the business. He therefore attempted to resolve the issues between Mr Moss and the CFO.

Mr Dodeja stated that after he instructed Mr Moss to focus on the operational aspects of the business and leave the accounts department to the CFO, Mr Moss proceeded on to stress leave and had not returned to work since. Mr Moss had ignored attempts by Mr Dodeja to contact him.

In the employer response form Mr Moss provided details in defence of the stop bullying claim. As these points were not tested in the hearing they could not be considered as proper evidence. This included references to necessary structural changes due to the increased size of the business and the need to update the CFO’s role to focus on debt collection due to the level of outstanding debts. He added he was simply attempting to take some of the workload and stress off the CFO to make her job easier stating he was genuinely concerned about her ability to cope with the increased workload.

Mr Moss stated the CFO had struggled to accept the required changes caused by the merger, that she continually refused to follow instructions, that she had distanced herself from the team, and failed to respond to emails and requests for information.

He denied there had been any bullying or harassment and that communication was centred on an expectation that she fulfill her role and collaborate with her colleagues effectively. He indicated all correspondence he had sent to the CFO ‘was done in a professional, fair and compassionate way to assist her in transitioning to the new role’.

The Decision

The Deputy President in her decision stated that the Applicant’s evidence was credible and had demonstrated a reasonably balanced assessment of the situation despite its impact on her.

She acknowledged the frustrations of the Managing Director, Mr Dodeja, in that he had been reluctant to take appropriate steps to investigate and deal with the issue due his concerns about Mr Moss exiting the business and therefore losing clients.

The Deputy President also acknowledged the Managing Director’s support for the CFO and corroborating evidence of her role and the quality of her work.

The Deputy President stated that: ‘Mr Moss unreasonably restructured the business, removing staff, duties and responsibilities from the Applicant in her role as Chief Financial Officer. I don’t accept that this was done to lighten the Applicant’s load’ adding there were no sound or defensible reasons this should happen.

The DP concluded that a reasonable person would reach the same assessment that such conduct was unreasonable management action. She further stated that she was satisfied there had been bullying given the multiple incidents of substantiated unreasonable behaviour. She highlighted these multiple incidents by adding: ‘including incessant questioning of the Applicant’s capabilities, dominating discussions, undermining the Applicant’s authority, hostile and pressurising phone calls and emails’

The DP was satisfied that the repeated unreasonable behaviour had created an ongoing risk to the health and safety of the Applicant.

Orders Orders

The Respondent company was required:

to put in place a comprehensive bullying policy including a complaints process
to ensure all existing employees receive training on this policy
to ensure that all new staff receive the same training
to ensure refresher training for all staff at least annually

In respect to Mr Moss:

That he does not communicate with the Applicant and must direct that all communications through the Managing Director, Mr Dojeda.
That when he returns to work he is required to behave in a civil and professional manner towards the Applicant and not disparage the Applicant.

Enforcement of Orders

While the Fair Work Commission is able to make such Orders they can only be enforced by the Federal Court or Federal Circuit and Family Court. Such enforcement can include an injunction or an Award of compensation up to about $100,000.

Employers are encouraged to deal with incidents of bullying before they lead to Fair Work Commission applications, workers compensation claims or damage the workplace culture.

Please contact to Hunter Employee Relations if you are concerned about bullying incidents or have a received a stop bullying claim through Fair Work.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au