https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5413.htm

Question: what do you do with a self-confessed “strong-willed person” who firstly files for a adverse/protected action whilst at work; then a workers compensation for the denial of a leave application for one day’s public holiday; and then makes an application for a stop bullying order – all of which are rejected.

Answer: Go along for the ride, because logic is in no evidence here.

Oh, and in rejecting the Bullying claim, Deputy President Lake states in this decision that if the applicant feels that she has been discriminated against, there are other avenues for her to pursue…and I bet she will.

On a positive note, at the end of this article, I have added the legal and considerations that relate to reasonable management action.

Background

The applicant in this “stop bullying” application had earlier (unsuccessfully) made application alleging contraventions to the general protections provisions under the Act not involving dismissal during the course of her employment. The Applicant considered her circumstances and ultimately lodged the present application largely in the same terms as those contained within her general protections application.

Whilst the applicants name does not appear in the decision, the respondent is clearly identified. In line with my editorial (self-imposed) rules, I will not identify the respondent.

The Applicant was employed as a cleaner at a shopping centre on or about 24 September 2018.

The Applicant submitted that from early on in her employment she raised a number of concerns with management regarding health and safety concerns, raised complaints that she and other staff were not receiving sufficient training and that she was feeling belittled and intimidated by another colleague.

The Applicant then submitted that from the period commencing 11 December 2018 to 17 February 2019 (Applicant’s last day at work) she was bullied at work and provided a number of incidents which she alleges took place to support her claim.

It is generally agreed between the parties that the Applicant raised a number of concerns verbally with [the respondent] about her employment, including about the performance and conduct of other staff.

Deputy President Lake (His Honour) commenting:

“The fact that these concerns were not subsequently escalated in writing or followed up by the Applicant with the Employer indicates to me that the Applicant, whilst disappointed with certain matters in the workplace originally, did not elect to document these matters or formalise them. I have concluded from this that they were largely, if not all, addressed in the conversation had between the Applicant and Ms D. In any event, the concerns were dealt with consistently with how they were raised by the Applicant with Ms D., that is, verbally. There is no positive obligation on managers or employer more broadly to formalise every discussion that employees have with them. To impose such an obligation is unnecessary and may actually preclude a successful resolution from being achieved”. [My emphasis].

On 13 December 2018, the Applicant alleged that she was excluded from joining a Christmas lunch due to a heavy workload on this day. On the evidence before me, I cannot conclude that the Employer took unreasonable action against the Applicant by requesting that the Applicant take a break later that day, thereby missing the lunch. On certain occasions, circumstances and rosters will change in workplaces consistent with workload allocation requirements. This incident appears isolated and not systemic. I am satisfied that this conduct does not satisfy the statutory requirements so as to say that the Applicant was bullied at work.

On 13 December 2018, the respondent received an email from a colleague of the Applicant complaining about the Applicant’s conduct/behaviour. The allegations in this complaint were not substantiated by the complainant and, as such, no action was taken by the respondent in relation to this complaint. His Honour stating, “This event has no probative value with respect to this application”.

On 30 December 2018 the Applicant submitted that she applied for leave and that this leave was rejected by her supervisor, stating that she was also required to work the public holidays.

“Whether this amounted to ‘bullying’ conduct…is not able to be determined on the evidence before me, especially when, in any event, the Applicant followed up on her confusion seeking clarification from [the respondent] regarding the company’s policy on taking leave on public holidays and [the respondent] responded to the Applicant clarifying this policy. At its highest at the time, the Applicant indicated confusion and sought clarification from Fair Work and [the respondent]”.

And:

“… Whilst the argument could be raised that the Employer communicated and handled the situation ineptly, it does not suggest the conduct exposed amounted to bullying…”

Moving duties

The respondent removed the Applicant from her assigned area and requested she work elsewhere in the mall. His Honour:

“On the evidence received, I cannot make any other determination that this request was anything other than reasonable management action and cannot constitute bullying in accordance with the Act”.

On 11 January 2019, the respondent received an email complaint from an employee who worked with the applicant. The crux of the written complaint against the Applicant pertained to a number of employees of the respondent failing to respond to a spillage at the shopping centre site, because the Applicant required assistance to locate and contact her lost children at the shopping complex. As a result of this complaint, the respondent on behalf of the co-worker considered it necessary to detail a Letter of Allegation to the Applicant, setting out its concerns.

The Applicant responded by email:

“Hey sorry to bother you but Im honestly so stressed out with all the dramas and yip today just seriously sent me over , as you know Im a pretty strong willed person , and happy to do anything I removed myself from floor to breathe for a minute, the miss communication is just getting beyond a joke, I was told once I question about with me getting training as I was requested to work on docks on Sunday, to have break at 14.00pm,so training could be given today but I had replied with how will that work as that would only leave [name] on floor for 30mins while Jorge covered [name] break then had his own, [name] said she would send [name] at 14.00pm , 14,10pm came about have always in any job known you don’t leave for break until your reliever is present 14.10pm came over radio had I gone on break my reply was no not yet, when demanded to go now, and I didn’t reply due to me attending to a customer whom Im not going to tell sorry Im on a break, ….. So helped them with there enquiry, when I went to put cloths away and finish doing what I was doing rubbish etc and call break in it was 14.21, to my knowledge I would return to floor at 14.50 but demanded I was back at dock 2 by 14.40, then when I replied with I wasn’t due back till 14.50, so I ended up returning my bag to locker earlier, as [name] said she would now meet me at Dock 4, I checked time it was 14.45pm I got told That [name] will be p*ssed off with me because I didn’t go at 14.00pm, for Break and got ripped into, yes I was upset because this week has been full of dramas with people playing chinese whispers , and hey another person stating [name] is going to be even more p*ssed off with me for not going on break obviously since requesting leave and being now approved Ive been a target breaks never a issue now started to see how a few others have been feeling the last few months I don’t know but have actually felt really belittled in a sense.

“Just feeling really frustrated with all the miss communication, conflicting information, talking behind backs.

Kind Regards…”

[Ed: words fail me…but not the applicant?] [The respondent] spoke to the Applicant about the email “shortly thereafter” and asked whether she wanted to lodge a formal complaint. The Applicant did not want to lodge a formal complaint or take further action; however, the Employer spoke to potential witnesses regarding the Applicant’s concerns. It is noted, despite the concerns of the Applicant, she was provided with sufficient opportunity to respond to her workplace grievances, however refrained from doing so.

In His Honour’s words: “Consequently, the handling of this incident can only portray a favourable picture of the Employer’s management action in this instance”.

On 18 January 2019, the Employer issued the Applicant a Letter of Allegation in relation to her conduct between 8 and 10 January 2019. The Applicant was required to respond by 19 January 2019 and a meeting was convened on 21 January 2019 to further discuss the matters. The allegations that were required to be addressed included as follows:

“1. On Tuesday 8 January 2019 while working in your role at [the shopping centre], it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

  1. Further to Allegation 1 it is also alleged you have been absent from your designated work area for approx. 30 minutes in order to locate your children

  2. On Wednesday 9 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other location for the entirety of your shift.

  3. On Thursday 10 January 2019 it is alleged you have brought your children to work and allowed them to be onsite in the Food Court and various other locations for the entirety of your shift.

  4. On Monday 7 January 2019 it is alleged you have taken a 1 hour lunch break instead of the allocated 30-minute lunch break

  5. On Tuesday 8 January 2019 it is alleged you have taken approximately 30 minutes break instead of the allocated 10-minute break”

His Honour finding:

Despite the lack of procedural fairness on behalf of the Employer in allowing the Applicant to respond, on 19 January 2019 the Applicant responded to the Letter of Allegation. The scheduled meeting for 21 January 2019 was adjourned by the Employer in order to review the Applicant’s response to the matters raised in the Letter of Allegation.

And on…and on it goes. So far the employer has to endure first the protected action claim, then this claim of bullying and then:

WorkCover Queensland notified the Employer on 22 February 2019 that the Applicant had lodged a Workers’ Compensation Claim based on an incident that occurred on 1 January 2019, as a result of being denied leave on a public holiday. The Applicant claimed she suffered a psychological injury caused workplace bullying and this resulted in depression. WorkCover Queensland rejected the claim on 19 March 2019.

Based on the evidence led by the Employer, it seems apparent the issue regarding leave on a public holiday was resolved promptly. Whilst the Applicant was initially denied leave , the matter was settled with the Applicant and approved the requested leave.

His Honour:

“It is difficult to reconcile the behaviour of [the respondent] as tantamount to bullying…However, as mentioned, [the respondent] presented the Applicant an opportunity to press a formal workplace complaint against Ms G. in relation to being denied leave and refrained from undertaking such process. Despite the Applicant’s unfortunate psychological state, it would appear the absence of such complaint suggests behaviour of Ms G. cannot be substantiated and would not amount to bullying without contemporaneous evidence”. My emphasis].

In rejecting the application, His Honour concluded:

“…I find that the actions taken by the Employer, that the Applicant alleged to have been bullying conduct, were in fact reasonable management action. As such the qualification of bullying conduct … applies so as to preclude a finding that the Applicant was bullied at work”.

Adding:

“I do note that there are other avenues that may be open to an employee who considers that they have been discriminated against, or subject to adverse action, on various grounds”.

Read on for the Legal Background and considerations

The meaning of a worker being bullied at work is established by s.789FD of the FW Act in the following terms:

789FD When is a worker bullied at work?

(1) A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates a risk to health and safety.

(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:

(a) the person is:

(i) a constitutional corporation; or

(ii) the Commonwealth; or

(iii) a Commonwealth authority; or

(iv) a body corporate incorporated in a Territory; or

(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;

then the business or undertaking is a constitutionally-covered business.”

For present purposes, there is no contest that the applicant is a worker and that the alleged conduct took place whilst she was at work in a constitutionally-covered business.

The immediate issue to be determined is whether the conduct as alleged by the Applicant is capable of constituting bullying conduct within the meaning of the Act given the objection raised that the behaviour of the employer was reasonable management action taken in a reasonable manner.
This aspect of the definition in s.789FD was discussed in S.B. and the Commission found as follows:

“Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.

An applicant may rely upon conduct that took place prior to the commencement date of the new provisions, to demonstrate bullying conduct.

‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.

The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here.

A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.

Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.”

Section 789FD(2) of the Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

  • the behaviour (being relied upon as bullying conduct) must be management action;
  • it must be reasonable for the management action to have been taken; and
  • the management action must have been carried out in a manner that is reasonable.

The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the qualification.

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. Without limiting that assessment, the considerations might include:

  • 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 specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

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.

For the circumstances in s.789FD(2) of the Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

Whether the management action was taken in a reasonable manner may depend on the action, 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.

All of the requirements of s.789FD(1) must be read together. In terms of the issues in dispute in this case, this means that the Commission must consider whether an individual (Ms. D.) has repeatedly behaved unreasonably towards the Applicant whilst the Applicant was at work and whether that behaviour has created a risk to health and safety. A positive finding on each of these elements, and if appropriate, a finding that the circumstances contemplated in s.789FD(2) of the Act do not apply to the behaviour, must be made for the Commission to find that the applicant worker has been bullied at work.