15 June 2015
Fair Work Commission
Anti-bullying Jurisdiction
Update
David Langmead
Barrister
Owen Dixon Chambers
205 William Street
Melbourne Vic 3000
DX 94 Melbourne Vic
P: 03 9225 7333
F: 03 9225 7907
dlangmead@vicbar.com.au
By David Langmead
The number of applications to stop anti – bullying behaviour continues to be much lower
than originally expected by some practitioners. In the last half of calendar year 2014
there were 358 applications, but only 35 proceeded to a decision and no orders were
made.
The Fair Work Commission (FWC) has given decisions which give further guidance to its
interpretation and application of the jurisdiction.
Some recent decisions include:
What is meant by “at work”?
Section 789FD of the Fair work Act 2009 states that a worker is ‘bullied at work’ “(a) while
the worker is at work”.
A Full Bench of FWC considered what this meant in Bowker and Others v DP World
Melbourne, MUA and Others.1
It rejected the proposition put by the Applicants, that conduct occurs ‘at work’ if it has ‘a
substantial connection to work’.2
It said that the legal meaning of the expression ‘while the worker is at work’ is not limited
to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker
performs work, regardless of his or her location or the time of day. The individual(s) who
1
2
[2014] FWCFB 9227
At [46]
DAVID LANGMEAD
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engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the
time they engage in that behaviour.
The Bench considered that the concept of being ‘at work’ encompasses both the
performance of work (at any time or location) and when the worker is engaged in some
other activity which is authorised or permitted by their employer, (such as being on a
meal break or accessing social media while performing work).
It further observed that workplace bullying manifests itself in a diversity of circumstances
and it is appropriate to take a cautious approach to what is meant by the words ‘at work’.
It considered that it is preferable that the approach to this issue develop over time, on a
case by case basis.3
Reasonable management action taken in a reasonable manner – section 789FD (2)
It is not workplace bullying if it is reasonable management action taken in a reasonable
manner.
The provision comprises three elements:
1. The behaviour (being relied upon as bullying conduct) must be management
action;
2. It must be reasonable for the management action to have been taken; and
3. The management action must have been carried out in a manner that is
reasonable.4
In Mac v Bank of Queensland (13 February 2015),5 the FWC dismissed a claim by an inhouse lawyer seeking bullying orders against five of her colleagues and their employer,
the Bank of Queensland.
The Applicant had been made aware of perceived shortcomings in her performance, and
was then put on a performance improvement plan with the possibility of dismissal if the
progress was not satisfactory. She alleged this was bullying. FWC found that placing the
applicant on a performance improvement plan was not unreasonable.
In doing so the FWC made some observations about factors which might be relevant to
such allegations:6

Performance plans which clearly identify targets for improvement, require
achievement of those targets within identified time frames, and which provide
support and feedback to employees to assist them to achieve such targets, are a
legitimate and commonly used means to improve employee performance.
3
At [48] to [52]
Ms SB [2014] FWC 2104 at [47]
5
[2015] FWC 774 per Hatcher VP; 13 February 2015
6
Ibid [98] to [102]
4
DAVID LANGMEAD
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
It is not unknown for performance management techniques to be used as a
means to achieve and justify a predetermined outcome of termination of
employment. If this occurred, it might be able to be characterised as a series of
repeated instances of unreasonable behaviour such as to fall within the first limb
of the definition of bullying at work.

In assessing unreasonable conduct it does not require FWC to form its own
judgment as to whether her overall performance was satisfactory or not and to
substitute its judgment for that of the relevant managers and supervisors.

It is necessary for the applicant to demonstrate that the decision to introduce the
performance improvement plan lacked any evident and intelligible justification
such that it would be considered by a reasonable person to be unreasonable in all
the circumstances.

In an aside, the Vice President gave some examples of features which might be
found in a course of repeated unreasonable behaviour that constituted bullying at
work. His list included the following: 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 A.B.7 the applicant was, in a change to her usual duties as had been customarily
performed, required to perform additional duties within her job description. She objected
on grounds which included alleged health and safety reasons (which were rejected). She
was subject to performance management because of her issues with not wanting to
perform the amended duties.
The FWC held that a requirement to have an employee to work in accordance with their
position description was not bullying.8
Is the employee at risk that bullying will continue?9
In James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita
Carroll 10 although Commissioner Lewin found that there was previous bullying behaviour
arising from disciplinary action, he was not satisfied there was an ongoing risk. He noted
that subsequent to the commencement of proceedings and an earlier jurisdictional
objection which failed, the employer had paid careful attention to procedural fairness
and withdrawn its disciplinary action.
He said:
7
[2015] FWC 3353 (4 June 2015)
Ibid at [19]
9
Section 789FC
10
[2015] FWC 3538 (22 May 2015)
8
DAVID LANGMEAD
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"On balance, in light of the evident intentions of the [company and its managers]
to follow fair procedure, I am unable to be satisfied that as long as the procedure
is followed, with the same intention and caution, there is a risk that bullying of
[the radiographer] will continue."11
Avoiding the problem
Notwithstanding the FWC’s conservative approach to applications it is far better to avoid
the problem.
An applicant is an ongoing employee who has to work with the employer and colleagues;
colleagues and managers will perhaps be tarnished, and whatever the result there is
almost bound to be some hard feelings.
Additionally, parties will be exposed to reputational damage, because it is unlikely that
the FWC will agree to make non-disclosure of identity orders. As the FWC said in Mac v
Bank of Queensland,12 “it is not sufficient to justify the making of a non-disclosure order
merely that allegations have been made which are embarrassing, distressing or
potentially damaging to reputations”.
OH&S laws require employers to take reasonable care of employees. This duty includes
implementing measures to control the risk of workplace bullying.
Employers should ensure that all employees and managers are informed about what is
expected of them in relation to their conduct at work including specific training about
behaviour to employees, and managers’ responsibilities to deal with complaints of
bullying.
The Victorian WorkCover Authority produces a useful booklet entitled “Your guide to
Workplace bullying – prevention and response.”13
********
11
Ibid [35]
Ibid at [9]
13
http://www.vwa.vic.gov.au/forms-and-publications/forms-and-publications/preventing-and-respondingto-bullying-at-work
12
DAVID LANGMEAD