Commissioner Hampton in Adelaide 12 May 2014, as head of the anti-bullying panel, handed down his first decision[1] under the new law.  Whilst the application failed, it did provide a wealth of knowledge on how the FWC has interpreted the anti-bulling provisions.

In this matter the FWC commented that that company should work on its workplace culture and the applicant had not acted “vexatiously”.  However, when applying the requirement of the FWA to the matter, it failed to meet the requirements for a “stop bullying order”.

In other words, the company could do better, but the FWC did not have the jurisdiction to deal with the issue at hand because the application did not meet the “legal” definition of bullying.

The decision interpreted “reasonable management action” as:

“[51] 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’.  In general terms this is likely to mean that:

  • 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;
  • to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
  • any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’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 Commissioner (in what seems to becoming increasingly regular in various legal matters) also criticised the HR department.  You are therefore encouraged to ensure that:

  • Policies are reviewed in the context of Guide to Preventing & Responding to Workplace Bullying available at:

http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/827/Guide-preventing-responding-workplace-bullying.pdf

  • Ensure that policies are signed off and training provided in relation to anti-bullying (with regular refreshers)
  • That claims of bullying are investigated immediately and thoroughly. If the HR department lacks such skills, use an external provider
  • All parties to the allegation are kept informed of the progress (respecting privacy at all times)

It should be pointed out that this decision related to the FWA only, and does not necessarily mean that such a liberal interpretation will be provided by other jurisdictions involving (eg) VWA or the Victorian Human Rights Commission.

[1] S.W [2014] FWC 4476

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.