In brief
Nearly 10 years on from the introduction of the anti-bullying jurisdiction, the volume of cases in 2023 might indicate that the jurisdiction is becoming more popular with employees.
What should employers know about the anti-bullying jurisdiction?
From the first anonymous case (Applicant v Respondent) in 2014 the Fair Work Commission (FWC) has continued to provide good guidance on how it expects employers to respond to complaints, what employees are required to do to bring a complaint, and what it will order if bullying claims aren't resolved.
Over nearly 10 years we have seen remedies range from directions not to make comment on an employee's clothes or appearance, not to contact employees out of hours, to make sure any contact is through a third party, training, and strict compliance with an employer's policies.
While the jurisdiction does not provide for financial compensation, remedies or penalties for bullying in the workplace may be available at common law, or under federal and state legislation (for example in the anti-discrimination jurisdiction or work health and safety).
The law allows employers to manage poor performance through reasonable management action and requires employees to raise complaints and grievances in good faith.
Having a good body of case law and regulatory guidance to consider, what should employers know about the anti-bullying jurisdiction:
Bullying is a Fair Work and an OHS issue
In 2023 Codes of Practice around 'Managing the risk of psychosocial hazards at work' (Codes of Practice) were released in most states. Our article, How can businesses manage psychosocial hazards in the workplace?, discussed the Code of Practice which aims to manage psychosocial risks such as bullying, harassment and sexual harassment.
Workers' compensation regulators across the country have reported increases in claims for psychological injuries. The cause is unclear: is it the pandemic's contribution to changes in the way we work? Is it flexible and hybrid working arrangements, the impact of technology and FOMO (fear of missing out) approach to digital solutions undermining our resilience and coping strategies including connecting with people, sleep and outdoor time? The reasons for an increase in claims for psychological injury is complex and multifaceted.
The shift to online work and changes in communication methods (email/instant message vs face to face) are factors which have likely contributed to an increase in the perception of bullying and sexual harassment in workplaces. Such behaviours may be more difficult for managers to identify, if employees do not readily report them. On the upside, the conduct may be more easy to establish where there are written records (in the form of instant messages or emails). Remote workers may also find it difficult to secure support and supervision, leading to additional stress.
The risk of facing violence and aggression may also be increased in remote work situations, not only from colleagues, clients but other people in remote workplaces (including family members). Employers should be aware that they may be held responsible for incidents of domestic violence affecting their workers under certain circumstances, as exemplified in the case of Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54.
To assist employers to better understand and manage psychosocial risks including bullying the Codes of Practice provide guidance. Employers should be familiar with the recommendations contained in the Codes and have in place risk management measures that are as good or better than those recommended in the Codes.
Aside from the introduction of the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022, there have been several cases in 2023 which provide useful guidance to employers about how to manage and respond to allegations of bullying.
Application by Ms Lindsay Rosenblum [2023] FWC 1640 (12 July 2023)
Facts
An accountant was granted an interim anti-bullying order by the FWC after her employer bypassed her lawyers (engaged to manage her concerns and complaints) and directly emailed her to attend a disciplinary meeting the following day.
The employer sent the email through the wife of its director, accusing the accountant of serious misconduct, including overpayment and theft.
Held
Commissioner Hunt accepted that the accountant was still considered "at work" despite being on unpaid sick leave and found that the director's wife had behaved unreasonably towards her, creating a risk to her health and safety. The Commissioner deemed the direct email to be inappropriate, as the accountant was already legally represented, and the email sent to the FWC was considered rude and disrespectful.
During the hearing, the director's wife displayed an aggressive attitude towards the accountant's incapacity and did not offer any undertaking to the FWC regarding her future conduct. Concerned about further unreasonable behaviour, Commissioner Hunt decided to grant the interim order, preventing direct communication from the employer to the accountant.
Key takeaways for employers
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Respect for legal representation: Employers should include an employee's advocate or legal representative (if engaged by an employee) during formal proceedings or discussions. Bypassing the employee's representative and directly contacting them, particularly when they are certified as unfit for work, can be seen as inappropriate and could harm the employer's position.
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Follow policies and procedures: Employers should adhere to their policies and procedures when dealing with disciplinary matters or allegations of misconduct. Labelling meetings as disciplinary meetings prematurely, when investigations are still underway may be enough to show that the employer has denied procedural fairness. If you do not have procedures or policies that detail how you handle disciplinary matters or allegations of misconduct, it may be time for a review.
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Professional and respectful communication: Employers and their representatives should maintain a professional and respectful tone in all communications with employees, especially when discussing matters related to health, performance, or allegations of misconduct. Rude and disrespectful language can damage the employer's credibility and escalate the situation.
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Ensure health and safety: Employers have a duty of care toward their employees' health and safety, whether they are on sick leave or working remotely. Employers must not create a psychosocial hazard or breach their duty of care to their employees.
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Take Complaints Seriously: Employers must take any complaints of bullying, harassment, or misconduct seriously and follow their relevant policies and procedures.
Applications by E and J [2023] FWC 364
Facts
A prior application (First Application) was brought in June/July 2022, following circumstances leading to the Applicant making an attempt on their life. No finding was made, but the FWC assisted the parties to resolve to implement preventative measures.
A Second Application was brought in January 2023, on the basis that:
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The Respondent failed to pay several invoices to the Applicants;
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The Applicants made several requests to the Respondent for payment, becoming increasingly desperate each time (the Applicants said that the withholding of payment caused them to be "living in misery" due to not having money over the Christmas period). They were eventually paid some 12 days late after several emails; and
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The Respondent replied mockingly.
Held
The failure to pay the Applicants was found to be a mistake and it was substantiated that the Respondent had sought to taunt or mock the Applicants in their response. Such conduct reasonably caused a risk to health and safety.
DP Dobson stated:
"I am of the view whilst the delay in the payment may have been a mistake caused by poor planning (reasonable management action), the mocking/taunting comments by Mr K fell short of being “carried out in a reasonable manner … it is my view that it was reasonably foreseeable that this would cause distress and mental anguish to the applicants."
The Deputy President found it "more than likely" that such conduct would continue with the body corporate "unable or unwilling to keep [the treasurer] in check". DP Dobson was satisfied that there was an ongoing risk to the health and safety of the Applicants as defined by s789FF of the Fair Work Act 2009 (Cth) and therefore the FWC's jurisdiction was enlivened. Consequently, it was appropriate to make interim orders.
Key takeaway
The key lesson for employers is that they should understand the FWC's ability to make interim stop bullying orders even where the Applicant and the named Respondent are not employed by the same entity.
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Stretton [2023] ICQ 015
Facts
The Queensland Police Service (QPS) appealed against a Workers' Compensation Regulator's decision to award compensation to a senior officer.
The compensation was based on the officer's psychological injury, which was claimed to have been caused by the QPS's misconduct investigation.
The QPS argued that their investigation into workplace bullying and misuse of internal disciplinary processes was reasonable and that any flaw in the investigation should be considered minor in a lengthy and complex process.
Commissioner Jacqueline Power of the Queensland Industrial Relations Commission found that a misrepresentation by the investigating officer had rendered the QPS investigation unreasonable.
Commissioner Power also concluded that this misrepresentation significantly affected the officer's mental health and was the major contributing factor to his psychological injury.
Held
The Queensland Industrial Court presided over by Vice President Daniel O'Connor, rejected the QPS's second appeal.
Vice President O'Connor stated that reasonable management action does not have to be perfect but must be reasonable in all circumstances.
He upheld Commissioner Power's decision that the investigation was rendered unreasonable due to the misrepresentation of evidence by the investigating officer.
The court concluded that the QPS's attempt to re-agitate the merits of the case rather than addressing the flaw in the investigation was not justified.
The court also upheld the finding that the misrepresentation significantly impacted the officer's health and was the primary cause of his psychological injury.
Key takeaway
The key lesson for employers is that they need to ensure that they conduct a reasonable investigation, because an unreasonable investigation into bullying allegations may lead to an accepted psychological claim by WorkCover.
Margaret Trainor v Council for Christian Education in Schools and others [2023] FWC 1272
Facts
A communications coordinator working for the Council for Christian Education in Schools filed a stop-bullying application against her employer, its CEO, and communications director.
The worker alleged that she was victimised and subjected to aggressive and intimidating behaviour and belittling comments after she objected to the employer's decision to direct staff to return to the workplace during the pandemic.
The worker sought stop-bullying orders, including reinstating her sick leave, reimbursement of medical expenses, and removal of the CEO from her role until an internal dispute was resolved.
Specific incidents cited by the worker included the communications director scoffing at her and accusing her of expressing "poor theology," berating and humiliating her for discussing a four-day working week in an open-plan office and being subjected to unreasonable performance management.
Held
Fair Work Commission Deputy President Alan Colman rejected the worker's bid for stop-bullying orders, stating that he had "no power" to grant any orders.
The worker failed to establish any risk to her health and safety or any link between the respondents' behaviour and the alleged risk, as required by the anti-bullying provisions of the Fair Work Act 2009 (Cth).
The communications director's remarks on "theology" were considered to be made during an informal discussion and not work-related.
The CEO's involvement in the internal bullying complaint was found reasonable, as she was named in the worker's complaint and needed to refer it to the board for resolution.
Deputy President Colman concluded that the worker's claims of bullying were unsubstantiated, and the firmness of the communications director's instructions did not equate to bullying.
Key takeaways for employers
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Risk to health and safety: To succeed in a stop-bullying application, the worker must demonstrate a link between the alleged bullying behaviour and a risk to their health and safety. In this case, the worker's failure to produce medical documents or evidence showing a risk to her health and safety was a crucial factor in the rejection of her claims.
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Reasonable management action: DP Colman stated that "firmness does not equate to harshness". Employers should be aware that reasonable management actions, such as giving instructions firmly or involving relevant parties in resolving complaints, are not considered bullying.
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Informal resolution and policies: This case also underscores the significance of having clear workplace policies for handling bullying complaints. Employees should be encouraged to use internal dispute resolution processes to address concerns. However, if a complaint involves a senior employee or management, formal involvement may be necessary.
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Open communication: Encouraging open communication and providing a respectful work environment can help prevent misunderstandings and potential bullying incidents. Employers should foster a culture of mutual respect and address conflicts promptly and professionally.
Mcatee v Holt [2023] QIRC 125
Facts
A school cleaner (worker), applied for stop-bullying orders against a fellow cleaner (co-worker), at Virginia State School, Queensland.
The worker claimed that the co-worker's conduct affected her to the extent that she feared for her safety and locked herself in her car in the school car park.
Specific incidents cited by the worker included the co-worker yelling and swearing at her for not picking up a jacket, leaving offensive notes, taking a photo of her, vandalising her car, spreading rumours, and expressing a desire not to see her become a permanent employee.
The co-worker was temporarily placed at other schools but returned, causing the worker to suffer chest pains, sweating, and a panic attack.
The Industrial Commissioner found the co-worker's excessive reaction to the jacket incident to be unreasonable.
Held
The Industrial Commissioner rejected the worker's bid for stop-bullying orders, stating that she was not satisfied that the co-worker engaged in repeated, unreasonable behaviour towards the worker.
Any risk to the worker's health and safety was likely a result of her perception of being bullied and ongoing tension rather than objectively unreasonable conduct by the co-worker.
The worker's other allegations were found to contain considerable hearsay and speculation and could not be relied upon as evidence of bullying.
While acknowledging a dysfunctional working relationship, the Industrial Commissioner was not persuaded that there was sufficient evidence of bullying by the co-worker.
The co-worker had not been physically violent or threatened violence, and the worker did not avail herself of opportunities to avoid her, such as changing working hours.
Key takeaways for employers
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Assessing bullying claims: Employers should carefully assess bullying claims based on objective evidence and avoid relying solely on hearsay or speculation. It's essential to investigate the specific incidents and determine if there is a pattern of repeated, unreasonable behaviour that constitutes bullying.
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Addressing dysfunctional relationships: Employers should take proactive steps to address dysfunctional working relationships and conflicts among employees. Providing training on appropriate workplace communication can help employees manage conflicts more effectively.
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Employee grievance procedures: Having clear employee grievance procedures in place can aid in handling workplace disputes. It allows employees to raise concerns formally and provides a structured process for resolution.
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Mitigating risk: When dealing with conflicting employees, employers can implement measures to minimise potential contact and reduce tensions. This may involve adjusting work schedules, providing separate work areas, or facilitating mediation to find common ground.
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Disciplinary measures: In cases where employees engage in unreasonable behaviour, employers may need to resort to disciplinary measures. However, it's crucial to ensure that such actions are proportionate, fair and ensure procedural fairness.
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Promoting a positive workplace culture: Employers should foster a positive workplace culture that discourages gossip and encourages open communication. Addressing conflicts and promoting respectful interactions can help prevent the escalation of tensions.
United Workers' Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251
Facts
An experienced HR manager, Cameron Blewett, was penalised for his role in dismissing a full-time production worker at Bervar, a pizza manufacturer trading as Della Rosa Fresh Foods.
The worker, who had been steadily progressing at the company for almost five years, was called into a meeting for alleged failure to perform part of her required tasks. After the meeting, she went home mid-shift without clocking off.
Blewett claimed that when he tried to conduct a "welfare check" on the worker, she told him to speak with her husband, who stated that she would not be returning to work. He also said that she had been bullied and harassed and that they would be taking the matter to "Fair Work".
Held
The Federal Circuit and Family Court Judge Karl Blake found Blewett accessorily liable for Bervar's adverse action against the worker.
Judge Blake found the sequence of events "utterly surprising", with Blewett failing to undertake any of the "basic things" expected of his profession when grasping the chance to remove her, despite the fact she did not resign and her husband had no authority to do so for her.
The Judge held that the dismissal was distressing and humiliating for the worker, as she was not directly spoken to about the decision, and her husband was assumed to have the authority to determine her employment.
The Judge found Blewett's conduct "deliberate", as he seized the chance to remove the worker to avoid a potential bullying and harassment case and a drawn-out dispute if she exercised her workplace rights. The Judge said that Bervar and Blewett's breach of s 340 of the Fair Work Act was "serious", involving senior management, in "somewhat egregious" circumstances. The Judge concluded that there was a "high need" for specific and general deterrence.
Bervar was ordered to pay compensation of $47,830 for economic loss and $9,000 as general damages to the worker, along with a penalty fine of $37,000. Blewett was fined $7,560.
Key takeaways for employers
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Following policies and procedures: Employers and HR managers must follow disciplinary processes to ensure that each worker is afforded procedural fairness. The allegations must be put to the worker and they must be allowed a chance to respond. Failure to do so will likely lead to a breach of the general protections provisions in the Fair Work Act 2009 (Cth).
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Consideration of vulnerable rmployees: Employers should be mindful of vulnerable employees, including recent immigrants with limited language skills. Taking adverse action against such employees will likely result in a court concluding a need for specific and general deterrence, which can result in larger quantum claims and fines against employers.
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Obligations under the Fair Work Act 2009 (Cth): Employers and HR managers should stay informed about their obligations under the Fair Work Act 2009 (Cth). Complying with these laws can help prevent claims and penalties.
Beshoy Mikhail v Employsure Pty Ltd ACN 145 676 026, SYG232/2023
Facts
A sales worker is pursuing Employsure in an adverse action case, claiming discrimination, bullying, and coercion after applying for parental leave and challenging claimed unilateral downgrading of the employee's conditions.
The sales partner alleges that Employsure initially approved his work-from-home request in connection to his parental leave. However, they later retracted their approval.
He accuses Employsure of retaliating against him for making complaints about alleged unilateral changes to employees' contractual terms.
The sales partner claims that Employsure managers engaged in bullying and harassment, making derogatory remarks and threats against him.
He kept records of his interactions in a notebook but alleges that someone destroyed the pages containing the alleged records.
The sales partner sought declarations, penalties, and compensation, claiming that the alleged treatment has rendered him unable to earn an income.
Employer's position
Employsure denies all the allegations and maintains that it conducted a thorough consultation before changing the employees' contracts as part of the business restructuring.
The company denies bullying, discrimination, harassment, and coercion, and refutes the alleged derogatory remarks made by its managers.
work-from-home request, and it was unable to accommodate it due to the nature of his job. Employsure asserts that the sales partner's supervisor did not have the authority to approve the
The company claims it provided alternative options to the sales partner, including parental leave.
Employsure also denies knowledge of the alleged destruction of the sales partner's notebook and that the alleged treatment led to the claimed physical and mental health issues.
Current state of the matter
The court date was vacated and the matter has been referred to mediation.
Key takeaways for employers
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Request for Flexible Work: The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 has recently amended the existing provisions in the Fair Work Act 2009 (Cth) to provide greater scope for employees to request flexible work. Employers now have to:
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discuss the request with the employee
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make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances
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consider the consequences of refusal for the employee
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provide a written response that includes:
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an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request
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other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes
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information about referring a dispute to the Fair Work Commission.
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A failure to do so may result in a breach of the provision, adverse action or discrimination claims.
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Importance of consultation: An enterprise agreement must contain a term that requires the employer to consult with employees about a major workplace change that is likely to have a significant effect on the employees, or change to their regular roster or ordinary hours of work. Failure to consult with workers about changes may result in a breach of the Fair Work Act 2009 (Cth).
Noonan v XYZ Security Services Pty Ltd trading as Advent Security Services [2023] FedCFamC2G 666 (27 July 2023)
Facts
The worker was employed as the strategic development manager at XYZ Security Services Pty Ltd (trading as Advent Security Services).
The company's sole director frequently used offensive language, including the word "c**t" and racist remarks, when referring to his employees.
The worker filed a complaint after the director referred to him as "c**t" during a meeting and requested to be called by his actual name and treated with respect.
The director stopped communicating with the worker and subsequently terminated his employment, claiming poor performance as the reason.
The worker filed a claim under section 340 of the Fair Work Act 2009 (Cth), alleging adverse action for making a complaint.
The court acknowledged a lack of temporal connection between the complaint and the dismissal but found the employer failed to discharge its onus of proving the complaint was not a substantial and operative reason for the termination.
The court emphasised the worker's right to a safe workplace free from insults and bullying under the Occupational Health and Safety Act 2004 (Vic).
Held
The worker's complaint about offensive language constituted the exercise of workplace rights within the meaning from the Fair Work Act 2009 (Cth).
The court found that the complaint was a critical event in the relationship between the worker and the director and influenced the decision to terminate the worker's employment.
Although the director claimed poor performance as the reason for the dismissal, the court determined that the complaint and the alleged poor performance were both substantial and operative reasons for the termination.
The court awarded the worker $93,500 in economic and non-economic loss, with potential pecuniary penalties to be determined later.
Key takeaways for employers
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Maintain a respectful work environment: Employers must ensure that the workplace is free from offensive language, bullying, and harassment. Encourage respectful communication and take complaints about inappropriate behaviour seriously.
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Handle complaints professionally: When an employee makes a complaint, it should be handled in accordance with Policies and Procedures.
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Document performance issues: If an employer needs to terminate an employee based on poor performance, they should follow the proper processes to do so and maintain documentation to support their decision. This documentation can be crucial in defending adverse action claims.
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Understand legal obligations: Employers should be aware of the legal rights and protections afforded to employees under the Fair Work Act 2009 (Cth). They should also understand their obligations concerning state WHS legislation. Understanding these obligations can help employers maintain a compliant and respectful workplace.
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Ensure Fair Decision-Making: Employers should make decisions about employee termination based on valid reasons supported by evidence. It is also important that once you have the evidence, the employee is afforded procedural fairness. Employers and decision-makers should avoid making decisions influenced by personal conflicts or complaints to minimise the risk of adverse action claims. If a complaint is made about a decision maker, it should be referred to the Board or a third-party.
Conclusion
There are several important lessons for employers coming from bullying cases in 2023. Employers should consider the trends and takeaways and understand how your workplace practices might need to be adapted to manage the risk of bullying claims being made. Failure to do so may result in compensation claims, fines and increased insurance premiums.