On 12 May 2014, the Australian Fair Work Commission (FWC) handed down its first substantive ruling in the new bullying jurisdiction and, in doing so, provided some much needed guidance to employers as to what constitutes 'reasonable management action' in the context of s789FD of the Fair Work Act 2009 (Cth) (Act). Importantly, the FWC has confirmed that a worker is not bullied at work in circumstances where he or she is subject to reasonable management action that is carried out in a reasonable manner.
The case of Ms SB  FWC 2104 concerned an employee hired in a role that required her to manage a new team of delivery support officers (DSOs). Following her commencement in this role, one of the DSOs made a bullying complaint against her. The complaint was subsequently investigated by the employer and found to be unsubstantiated. The DSO was moved to another location and later left the company.
A few months later, a second DSO made a bullying complaint against the manager which contained similar allegations to the original complaint. Without knowing about the complaint, the manager sought a meeting with the employer's Human Resources department to discuss the DSO's conduct. However, once the manager became aware of the complaint, she decided to lodge an application with the FWC alleging that she had been subject to repeated unreasonable behaviour by the two DSOs.
Upon becoming aware of these complaints, the employer engaged an external investigator to investigate the allegations of bullying made by both the second DSO and the manager. The investigator found that the allegations against the manager were substantiated (in part) however, the manager's claims were unsubstantiated.
The manager sought orders from the FWC requiring the employer to comply with its bullying policies and monitor workplace behaviour in the workplace. In seeking these orders, the manager alleged that she had been bullied at work in the following ways:
she had been the subject of two separate complaints
the employer had accepted each of these complaints as matters to be investigated
after the first complaint had been investigated and the allegations found to be unsubstantiated, the employer did not take adequate action to prevent similar inappropriate complaints from reoccurring in the future
there were "ongoing malicious rumours" being spread about the manager in the workplace as a consequence of her employer failing to notify relevant stakeholders of the outcome of the investigation into the complaints
she had been subjected to harassment and humiliation without receiving adequate support from the employer.
The employer opposed the Application on the grounds that there was an absence of repeated unreasonable conduct and that any conduct by itself was reasonable management action taken in a reasonable manner.
In determining that the manager's Application should be dismissed, Commissioner Hampton found that the idea of repeatedly behaving unreasonably implied the existence of "persistent unreasonable behaviour but might refer to a range of behaviours over time".
On what constitutes "repeated behaviour", Commissioner Hampton confirmed that there is no specific number of incidents that must occur for the behaviour to be considered repeated, provided the behaviour occurs more than once and, further, that the same specific behaviour does not need to be repeated.
With respect to the employer's submission that its conduct constituted reasonable management action under s789FD(2), Commissioner Hampton made reference to the Explanatory Memorandum of the Fair Work Amendment Act 2013, which introduced the bullying jurisdiction and held that in drafting section 789FD(2), the legislature intended it to pick up "everyday actions to effectively direct and control the way work is carried out".
Commissioner Hampton found that it was an objective test that must be applied in assessing whether management action was reasonable in the context of the circumstances and knowledge of those involved at the time. Further, it is not whether it could have been undertaken in a manner that was "more reasonable" or "more acceptable".
As a result, Commissioner Hampton determined that:
management actions do not need to be perfect or ideal to be considered reasonable
a course of action may still be 'reasonable' even if particular steps are not
to be considered reasonable, the action must also be lawful and not be 'irrational, absurd or ridiculous'
the 'actual' action needed to be considered, rather than the applicant's perception of it, and
it might be relevant to consider whether the action involved a significant departure from established policies or procedures and, if so, whether the departure was reasonable in the circumstances.
While Commissioner Hampton said that in 'hindsight' the employer should have provided more support to the manager following the first unsubstantiated complaint, this failure was not unreasonable, especially as the manager was initially reluctant to take up the support that was offered to her at the commencement of the investigation.
Ultimately, the FWC found that there was insufficient evidence to find that the complaints were part of a coordinated campaign against the manager sufficient to constitute repeated unreasonable behaviour which created a risk to health and safety.
Lessons for Employers
The decision in Ms SB  FWC 2104 should provide employers with much needed guidance as to how complaints of bullying should be dealt with and the standard of management action the FWC will consider reasonable.
Employers should be aware that while failure to handle bullying complaints in a 'perfect or ideal' way may not be fatal to an argument of 'reasonable management action', it is important for an employer to have established dispute resolution procedures and policies in place and to follow them closely when confronted with a claim of bullying.
It is clear from this decision that the FWC will look carefully at an employer's departure from its policies and the surrounding circumstances to determine if a departure from these policies was reasonable. This could ultimately affect whether an employer can successfully argue that action taken by it was 'reasonable management action' in accordance with s 789FD(2) of the Act.