A person will be covered by the anti-bullying laws, and therefore eligible to make an application in the Fair Work Commission, if they are a worker (as defined in the Work Health and Safety Act 2011 (Cth)), are not a member of the Defence Force and experience the bullying behaviour whilst at work in a constitutionally-covered business. The Work Health and Safety Act 2011 (Cth) (WHS Act) states that a worker is a person who carries out work in any capacity for a person conducting a business or undertaking, including an employee, a contractor or subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, an outworker, an apprentice or trainee, a student gaining work experience or a volunteer, except a person volunteering with a wholly ‘volunteer association’ with no employees (whether incorporated or not).
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Aforementioned, workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety.
In Amie Mac v Bank of Queensland Limited and Others, the Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.
In regards to establishing a risk to health and safety for the test of workplace bullying, proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is demonstrated. Thus, the bullying behaviour must create the risk to health and safety through a casual link.
In order to constitute workplace bullying, the bullying conduct must have occured while the worker is “at work”. Although “at work” is not defined clearly in the legislation, it has been held that the definition includes work activities wherever they may occur and is not limited to the confines of a physical workplace. The Full Bench of the Commission in Bowker and Others v DP World Melbourne Limited T/A DP World and Others has considered this point in regards to the use of social media. The Commission has given preliminary consideration to the complex issue of the circumstances in which a person who is the target of repeated unreasonable use of social media may be said to have been ‘bullied at work’. The Full Bench rejected the submission that the relevant behaviour must be limited to use of social media at work or during work hours. This is because social media posts, such as on posts on Facebook, remain on the relevant platforms after they are posted. Thus the worker need not be ‘at work’ at the time the comments are posted and it would suffice if they accessed the comments later while ‘at work’.
Reasonable management action conducted in a reasonable manner will not constitute workplace bullying. The Fair Work Commission has held that management action constitutes performance appraisals, ongoing meetings to address underperformance, counselling or disciplining a worker for misconduct, modifying a worker’s duties including by transferring or re-deploying the worker, investigating alleged misconduct, denying a worker a benefit in relation to their employment, or refusing an employee permission to return to work due to a medical condition.
Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time, including the circumstances that led to and created the need for the management action to be taken, the circumstances while the management action was being taken, and the consequences that flowed from the management action.
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’. Generally, 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, any ‘unreasonableness’ must arise from the actual management action in question, rather than the worker’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.
The question of whether the management action was carried out in a reasonable manner is a question of fact and the test is an objective one. It considers what action is taken, 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. For instance, the Fair Work Commission will assess the particular circumstances of the individual involved, whether anything should have prompted a simple inquiry to uncover further circumstances, whether established policies or procedures were followed and whether any investigations were carried out in a timely manner.
An employee must be able to demonstrate that the decision to take management action lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.
If an employee is still employed by an employer and wishes to make an application in regards to workplace harassment, the employee can lodge a Form F72 – Application for an order to stop Workplace Harassment – or a Form F8C – General Protections Application not involving Dismissal.
A Form F72 – Application for an order to stop Workplace harassment – is an application which seeks a preventative remedy, not remedial, punitive or compensatory. For the Commission to be able to make orders to stop harassment, it must be satisfied not only that a worker has been bullied at work by an individual or a group of individuals, but also that there is a risk that the worker will continue to be bullied at work by that individual or group of individuals.
Once an employee lodges a Form F72, the Fair Work Commission will consider the evidence and whether, assessed objectively, that evidence constitutes harassment behaviour and, in that context, whether it comprised reasonable management action carried out in a reasonable manner. Prior to a determination being made, the Fair Work Commission is likely to hold a preliminary conference to consider how the matter will proceed and how the parties will conduct themselves during the course of proceedings. A matter may then be listed for a determinative conference or a hearing to determine whether or not to make an order to stop harassment.
A Form F8C – General Protections Application not involving Dismissal – is an application in which employees can seek a preventative remedy but also possible compensation through an exit package. If an employee can demonstrate workplace harassment and as a result, does not wish to continue their employment, the employee can see an exit package, by way of resignation, to terminate the employment relationship. If the employee can demonstrate pain and suffering as a result of the workplace harassment, the employee may seek compensation in the form of general damages.If you are unsure about which application to pursue against your employer, please give us a call for a free and confidential consultation.
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