By Laura Driscoll.
Laura is a senior associate in the employment and safety team at Colin Biggers & Paisley
A recent case in the Fair Work Commission has highlighted the varied types of behaviour that can constitute bullying under the Fair Work Act 2009. In the case of Roberts  FWC 6556, the Fair Work Commission considered 18 allegations of unreasonable behaviour made by an employee, nine of which were found to be made out by the FWC. The employee was employed by VIEW Launceston as a real estate agent. The allegations of unreasonable behaviour were mainly against the principal and co-director of the real estate agency and his wife, the sales administrator.
Some of the behaviour against the employee that the FWC held to be unreasonable were instances where the sales administrator:
- delayed performing any administration work involving the employee's property listings or potential listings to make the employee look unprofessional
- spoke to the employee in a rude and hostile manner when the employee asked her if she should answer the phone
- put a client of the employee into a debt collection service for an outstanding account despite the employee arranging that the account was to be held until the client's property was sold
- listened to the content of the employee's work conversations and then questioned her about the content
- did not acknowledge the employee in the morning and failed to deliver her photocopying and printing despite doing so for others
- failed to inform the employee when her clients had phoned
- "defriended" the employee on Facebook
Before the FWC can make a finding that an employee has been bullied, the following criteria must be satisfied. Under section 789FD of the Fair Work Act, a worker, as defined in the Work Health and Safety Act 2011 (NSW), is bullied at work when:
- the worker is at work in a constitutionally covered workplace;
- an individual or group of individuals repeatedly behaves unreasonably towards the worker, or group of workers of which the worker is a member; and
- that behaviour creates a risk to health and safety.
The Commissioner held that it was common ground between the parties that the employee was a "worker", she reasonably believed she had been bullied at work and that the real estate agency is a constitutionally covered workplace.
With regard to "repeated unreasonable behaviour", the Commissioner acknowledged that it can refer to a range of behaviours over time. The Commissioner provided a broad list of behaviours that may be considered unreasonable. Some of the less obvious examples included: sarcasm, bad faith, isolating, freezing out, belittling and innuendo.
The employee led evidence that she had been diagnosed with depression and anxiety, and received medication and treatment by a psychologist. This led the Commissioner to conclude that the behaviour posed a risk to her health and safety.
The Commissioner made an order to stop the bullying at work of the employee. The details of the order are not yet available.
This case demonstrates that the type of unreasonable behaviour towards a worker can be very broad and potentially hard to detect. For example, the sales administrator's "defriending" of the employee on Facebook would not normally be apparent to an employer.
This creates a challenge for employers because it requires them to have a system in place that is flexible enough to detect varied behaviours that may be unreasonable.
SafeWork NSW provides guidance in its Guide for preventing and responding to workplace bullying. The Guide provide practical tips on how employers can manage the risk of workplace bullying.
According to the Guide, the risk of bullying can be eliminated or minimised by the early identification of unreasonable behaviour and situations that are likely to increase the risk of workplace bullying. This can be achieved by:
- training managers and arming them with appropriate tools to enable them to detect the signs of bullying behaviours before they manifest in the workplace
- regular consultation with workers, and where relevant, work health and safety representatives
- seeking feedback from workers when they leave the business
- monitoring incident reports, workers compensation claims, patterns of absenteeism and records of grievances to establish any patterns of behaviour
- recognising changes in workplace relationships between workers, customers and managers
The Guide also recommends the implementation and maintenance of a robust anti-bullying system as an effective control to manage the risks presented by workplace bullying.
The effectiveness of such control measures should be monitored and reviewed, either in accordance with a scheduled date or upon request. For an anti-bullying system to be effective, it is imperative that it is used in practice (not just "lip service") and is reviewed regularly to capture changes to the legislation and developments in the case law.