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Introduction

Full decision here.

This was a very lengthy decision involving the CEO of a local government council and its elected officials. It is good reading for those who wish to gain greater knowledge of the legal basis for making a claim of bullying.

Background

This matter involves a complaint of bullying from a local government CEO to the elected members of the city council (“the Council”). The complaint was against one of the elected councillors and involved the interpersonal relations between me the CEO and a Councillor , which had an impact on the CEO’s “health and well-being”.

Specific ally, the CEO was not happy with the named Councillor persistently making derogatory remarks about him in emails and had repeatedly undermined him in the CEO Performance Review Committee meetings. The CEO also noted that the intention of the named Councillor was to have the CEO replaced – which, CEO said, was confirmed in an email exchange between two other Councillors.

The Council, in response, held an informal meeting to discuss the complaint. They reached consensus that an investigation was necessary, the CEO’s request for personal leave would be accepted and his IT access would be temporarily suspended during the investigation – enabling a reprieve from his purported excessive workload, an issue which he had identified was causing him stress.

The investigation was carried out by an independent external consultant.

Not happy with this response

In reply to the Council’s decision, the CEO sent an email to the Council’s mayor stating:

“apparent reason for the City and each of the Elected Members when they made the resolution to take such adverse action against me would appear to be because of my complaint”

And a further email stating that there was no proper basis for the Council to place him on special paid leave under his contract – and again referred to such conduct being improper and adverse action against him because he had made a complaint.

Complaint escalated to misconduct

Following the investigation, the CEO faced allegations of misconduct and was suspended on pay pending an investigation into the allegations (misconduct investigation). At the time of this “bullying” hearing, Council had not yet determined the outcome of the misconduct investigation.

The CEO applied for urgent interim orders to prevent the Council from effectively having any further involvement about, concerning, or in relation to the bullying complaint or misconduct allegations.

The report presented to Council

On the conclusion of the investigation into the bullying investigation, a report was provided to the mayor who tabled it a meeting of Council. The CEO made an application to make a “deputation’ at this meeting, which was denied.

The Council did take action by way of resolution, which included:

  • Arrange training for the elected members;
  • Note any recorded past allegations of inappropriate conduct by the named Councillor, to determine whether anything needs to be reported to the Standards Panel, is to be examined by the Complaints Officer;
  • Review the Elected Member Code of Conduct and amend any content to clarify acceptable levels of conduct when dealing with employees of the City;
  • Review the Elected Member Communications Policy to clarify acceptable levels of conduct between elected members and employees when communicating on matters related to the functions of the City;
  • Appoint the Director, Governance, and Community Services to be its Complaints Officer.

Once these measures were implemented, the Mayor is to provide written notice to the CEO of the measures that the City is implementing to meet its obligations under the Occupational Safety and Health Act 1984, and any other statutory requirements.

The Council further determined to:

  • Provide direct Human Resources and workplace support to the CEO, on request;
  • Provide written clarification on the responsibilities of the CEO under the Local Government Act in managing the behaviour of Elected Members;
  • Request the CEO to initiate a review of the role and responsibilities of the CEO position to determine whether the job can be redesigned, or workload distributed and provide a report of the review to a committee of Council;
  • Conduct a mentoring exercise between the CEO and all elected members to ensure an understanding of the roles of all parties;
  • Conduct a mentoring exercise between the CEO and the Mayor to ensure the liaison role between these two positions are clearly identified and understood;

Can the Fair Work Commission make an interim order in a bullying claim?

No, it does not decide the Deputy President in this matter, relying on the decision of another Deputy President’s decision in Leanne Mayson v Mylan Health Pty Ltd and others (Mayson), stating that:

“I concluded that the Commission had no power to make an order – whether interim or final, to stop ‘bullying’, unless satisfied that the two limbs…had been met. First, the Commission must be satisfied that [the CEO] has been bullied at work by an individual or group of individuals and second, there is a risk that at work [the CEO] will continue to be bullied by the individual or group of individuals identified in his application”.

No bullying, therefore, no matter

The DP finding, in part, that the CEO had not been bullied at work. The DP did find that one Councillor had engaged in repeated unreasonable behaviour toward the CEO for a period, noting however that for approximately two months in 2020, this Councillor was suspended.

“However…I was not satisfied that there is a risk that at work [the CEO] will continue to be bullied by [this] Councillor”.

The DP finding:

“Based on the above, I concluded the Commission was absent jurisdiction to make the proposed interim order sought, or the proposed final order. Therefore, I dismissed the application and, accordingly…”

However, the DP did refer to a number of previous decisions on the matter of “interim orders” and concluded that the FWC has no power to make an interim “stop bullying” order.

Allegations of misconduct against the CEO

An investigation into a “leak” to a major newspaper was traced back to the CEO, therefore there were a number of issues that related to this allegation, in that the CEO:

  • Leaked a “private and confidential” email to parties not included in the process.
  • That is was apparent that the CEO attended a Council function when he was on “special leave” and when he was ordered not to attend to any of his duties.
  • Contacting members of the Council when on “special leave”.

Powers of the Fair Work Commission (for practitioners only)

By way of introduction, the DP reminded the parties that the Commission is established by the Fair Work Act 2009 and derives its powers from the same. It is not a Court of record. Its functions are set out in s.577 and the matters it is required to take into account in performing its functions are prescribed in s.578. The DP went further:

“In Re George the jurisdiction of the Commission was further examined. The relevant paragraphs at [30] –[32] are extracted below:

[30] I would also accept that the Commission might need to form some views about the apparent legal validity of various decisions and actions in order to determine its jurisdiction to deal with matters. For example, assuming the Commission otherwise had jurisdiction, this could include forming a view about whether the conduct of the parties in light of the purported resolutions was unreasonable so as to potentially form part of findings relevant to s.789FD of the FW Act – whether there has been bullying conduct. In forming those views, even on these and other legal questions, the Commission is not exercising judicial power.

[31] For this and other purposes, the Commission may also have regard to legislation made by State Parliaments, in this case South Australia, and other instruments, and determine relevant legal and factual issues provided they properly arise within a jurisdiction established by the FW Act.

[32] However, even when the Commission needs to form a view on a legal question in order to find or exercise its jurisdiction in matters of this particular nature, those views do not of themselves actually declare the legal rights more generally. For example, the Commission could not conclusively determine for purposes beyond its jurisdiction whether the SGM and SEM, were at law validly convened or whether the apparent resolutions were at law validly passed and complied with the various requirements of the APY Act. Ultimately, only a Court of competent jurisdiction (a Court of record) could make a binding declaration on those matters”.

The DP then described the Bullying provisions of the Act, including:

Having considered…the Fair Work Amendment Bill 2013 Revised Explanatory Memorandum, the observations of the Commissioner can be reduced to the following:

a) there are two prerequisites to the making of substantive orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant worker will continue to be bullied at work by the individual or group concerned;

b) where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed;

c) any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the Act”.

Examination of the “At work” requirement of the Bullying legislation

Section 789FF requires that the bullying occur “at work”. In the context of whether the term “at work”, the DP noting the counsel for the Council noted the observation of the Vice President in BOQ:

“…it has not been necessary for me to determine whether all of the pleaded instances of behaviour occurred while Ms Mac was “at work”, although if it was necessary for me to do so, I would have found that many if not all of the instances of behaviour dating after Ms Mac went off work because of illness on 7 March 2014 did not occur ‘at work’”.

“This was also true in the decision of Richardson v Optus Retailco Pty Ltd & Ors, (Richardson), which it was said that there appeared to be no possibility of a risk of future bullying at work by the named individuals because the applicant in that case was not presently at work, having being stood down pending the outcome of the disciplinary process arising from a co-worker’s complaint”.

The DP concluding:

“The gravamen of the argument for the …the City, was that after 24 October 2020, [the CEO] was not attending work, was not accessing his work email due to restrictions and not attending work related events. Therefore, it was reasonable to infer for the purposes of s.789FF(1)(b)(i) that [the CEO] was not ‘at work’ from 24 October 2019 until the day of the hearing”. [My emphasis].

The DP presses on with a number of other citations which reach the same conclusion.

Put simply, to be bullied “at work” you need to be in attendance and/or involved in some way in the duties of the work. In this case the CEO was on “special leave” with instructions not to do any work. The decision did not examine the fact that the CEO was on “paid” leave, but focused on the interaction between doing work and the bullying.

Was the bullying claim a ruse to interfere with the disciplinary process?

The Commission has stated that the anti-bullying jurisdiction should not be used as “a means of hampering, or even stopping justified disciplinary action, implemented by an employer, as a reasonable management response to an employee’s poor performance or misconduct”.

The DP:

“The aforementioned objections were characterised as behaviours which were unreasonable, unfair, unlawful, unauthorised, and undue. All of which, concerning the conduct post 23 and 24 October 2019, I have found not to be the case. While a wordsmith might by prolix turn of phrase attempt to dress certain conduct or behaviour (in this case predominately alleged procedural deficits) with the cloak of bullying, it is timely to recall the words of the Vice President in BOQ who said that the following conduct was such ‘which one might expect to find in a course of repeated unreasonable behaviour that constituted workplace bullying’:

…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.

While the list of behaviours set out in BOQ are not exhaustive they are indicative of the nature of behaviours which one might expect in these types of applications. There may well be occasions where management action is found to be unreasonable or has not been carried out in a reasonable manner. Hence giving rise to findings of behaviour such as bad faith. However, I have found that not to be the case here, and I do not consider it desirous to reflect on [the CEO’s] motives for making the application because they have no bearing on the findings made or conclusion reached in this case”.