Australian Workplace and Discrimination Representatives, an Australian non-lawyer employee representative organization, recently noted on its blog that the Australian Fair Work Commission (“FWC”) issued its first ruling on May 12th under the new anti-bullying rules.
As Coleman Greig Lawyers noted in their blog, the case involved two complaints by a supervisor of bullying – bullying by her subordinates, and bullying by management by way of lack of support – and a subsequent employer investigation which found that “there was no indication the complaints were part of a “coordinated campaign.”
The FWC found, according to Coleman Greig, that no bullying behaviour was proven; much of the evidence involved “potentially inflated notions” of the significance of various instances of conduct, and there was a lack of evidence of repeated conduct or of a risk to health or safety or of the likelihood of continuation of the conduct complained of. The conduct alleged also fell short of being unreasonable conduct.
“[T]he Commissioner noted that the employer had an obligation to investigate complaints of bullying, and that it was reasonable to do so by way of an external investigation. It was also reasonable of the employer not to make a particularly prominent publication of the outcome of the first bullying complaint the Christmas party complaint, as that might well have given extra prominence to the original allegations, against SB’s interests. Dealing with unfounded complaints might be unreasonable behaviour by the employer, but none of the instances in this case was sufficiently clear cut to say at the outset “This is unfounded”.
Australian Workplace and Discrimination Representatives summarized the Commission’s holding:
• Management actions do not need to be perfect to be considered reasonable.
• Even if particular steps are not reasonable, a course of action may be.
• The action must be not be irrational.
• Rather than the employee’s conception of the action, the actual action must be considered.
• If the action was a departure from established procedures, it must be determined whether the departure was necessary.”
Australian Workplace and Discrimination Representatives’ takeaway: “This definition of what is a ‘reasonable management plan’ could result in fewer applications filed by employees under the new jurisdiction as employees may find that it is difficulty to prevail when the conduct must be ongoing and not simply an isolated incident (emphasis added).”
Coleman Greig’s takeaway: “This decision indicates that cogent evidence will be required before the Commission it is satisfied about behaviour being unreasonable, likely to continue and posing a risk to health and safety, all matters which are necessary before a finding of bullying can be made.”