The Misuse and Abuse of the FWC’s Stop Bullying Order Applications

In a decision by the Fair Work Commission (the Commission), Deputy President Sams warned against Applicants’ improper use of stop bullying applications “as a deflection, or diversion, or even to overturn a justified disciplinary action”.

The detrimental effects of workplace bullying on employees are well known and include decreased productivity, reduced well being, and increased absenteeism. This, in turn, has detrimental effects on an organisation’s productivity and operational dynamic.

The Commission can make orders that it considers appropriate to prevent an applicant from being bullied at work, providing an avenue to stop workplace bullying.

In cases where the conduct constitutes bullying under the Fair Work Act 2009 (Cth) this can be useful. However, often times, employees may genuinely feel aggrieved by management decisions and feel ‘harassed, bullied or targeted’, despite objectively this not being the case. Though a worker’s feelings may be genuine, the legal test of what constitutes bullying does not consider the workers own belief, but rather is an objective test of what amounts to bullying. My colleague Jacob Reddie considered the overuse of the term bullying in the workplace in a previous post.

It is reasonable and at times necessary to manage workers’ performance, investigate complaints and provide disciplinary action. In some circumstances this may be robust. This, however, can fall within the scope of ‘reasonable management action’ which is taken in a reasonable way and is an exception to the definition of bullying under the Fair Work Act 2009 (Cth). Without this exception it could be extremely hard to manage difficult misconduct and performance issues. So long as the management action is reasonable, it does not need to be the perfect or ideal response. The action will be unreasonable if it lacks any evident and intelligible justification.

Some employees disconnect between what does and does not legally constitute bullying, combined with what to them is a genuine grievance, can lead to inappropriate stop bullying applications. The more concerning conduct is that of an employee who knowingly alleges conduct to be ‘bullying’ because they do not agree with or like the management’s decision, and attempt to circumvent that decision.

This issue is considered in the case below.

Tanka Jang Karki [2019] FWC 3147

Tanka Jang Karki (Karki) was a Bellman at The Star (the Employer). He first filed a bullying application that related to an incident where the Front Office Manager, Ms Jessica Sykes (Sykes), saw him using his phone on 27 August 2018, which was against the Employer’s policy. He claimed he was publicly abused, embarrassed and harassed by Sykes. He later alleged another incident of bullying, being a final warning he received for spitting into a bin in a public work area.

Phone use incident

Karki was directed to attend a meeting about his phone use on 27 August 2018. During this meeting, amongst other things, he claimed he was checking the time, quickly replied to a text from his son and was not using his phone as he was not talking on the phone. He claimed he was harassed by Sykes on 27 August 2018 in front of other people where she yelled at him.

Karki requested to see the CCTV footage as the Employer suggested his phone use was more than the 3 to 5 seconds that he alleged.

During this first meeting he said he was going to HR as he was being harassed.

Another meeting was arranged to show Karki the footage. At this meeting when Karki was told he would be receiving a written warning he replied “if you want to give me the written warning, you will see what will happen”.

Spitting incident

On 30 December Karki was seen spitting into a rubbish bin in a public area. A disciplinary meeting was arranged. Karki admitted to the incident claiming he was bleeding from his mouth, there were no guests in the area, there was dust from construction near the lobby area and the Employer did not have a policy relating to that conduct.

He did not agree with the final warning for this conduct and felt targeted by the Employer.

Commission decision

The Commission found the Employer and Ms Sykes’ conduct constituted reasonable management action carried out in a reasonable manner. Karki was therefore not bullied at work.

The Commission said that Karki’s disciplinary action was justified and his refusal to acknowledge his conduct showed he had little understanding of what bullying in the workplace really means and that any employer able to prove concerns about an employee’s conduct is entitled to take disciplinary action.

It also noted that Karki did not follow the Employer’s grievance process and usually the Commission would not intervene until an internal process was complete.

A concerning observation by Deputy President Sams was that stop bullying applications are being misused as a shield or diversion against justifiable management action.

Key takeaway

Employers have every right to properly manage, discipline and performance manage employee misconduct and poor performance. There are risks if management cannot show an objective and reasonable disciplinary process has been undertaken. It is important for employers to demonstrate a legitimate reason for the conduct being managed and that it is reasonable to manage it in that way, despite not necessarily being the perfect way.

Clear and known workplace policies ensure an employer is well placed to manage and respond to bullying allegations, and although there is scope for the misuse of the stop bullying jurisdiction with some employees quick to allege ‘bullying’ and ‘harassment’, the Commission has demonstrated those applications will not succeed.

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May 29

Is the word “bullying” being overused in the workplace?

There is no doubt that workplace bullying can be a serious matter for employees and employers. It can lead to higher rates of depression and anxiety for employees as well as physical health problems such as cardiovascular disease, migraines and obesity. Bullying in the workplace also has detrimental effects for employers as it can lead to increased absenteeism, lower productivity and the erosion of team morale. This is estimated to cost Australian companies between $6 billion and $36 billion each year.

As an employment lawyer, I have noticed recently that the term “bullying” is being used rather loosely to describe a range of interactions in the workplace. Often, “bullying” is used simply to describe an experience that a person does not like, whether it be rude behaviour or being told to do something by their boss, rather than actually meeting the ordinary or legal definition of the word.

So, with that in mind, what is, and is not, workplace bullying?

What is workplace bullying?

I see constant references to alleged bullying in Fair Work matters. Our clients also frequently face workers compensation claims where an employee has alleged a psychiatric injury due to “bullying”.

Many employees and employers do not appreciate that the reasonableness of workplace behaviour, and whether it constitutes bullying, is judged objectively rather than being based only on an individual’s own subjective perception of the situation. The Fair Work Commission has consistently held that there cannot be a finding of workplace bullying based solely on an employee’s subjective belief that they have been bullied.

Common examples of behaviour that are workplace bullying include:

Using abusive, insulting or offensive language towards another person
Deliberately excluding another worker from workplace activities
Aggressive or intimidating conduct
Playing malicious practical jokes
Spreading rumours

What is not workplace bullying?

Unfortunately, the term bullying in the workplace seems to be increasingly used to describe behaviour a person does not like or that they feel is an infringement of their rights (when in fact it is not). A manager providing feedback to an employee critical of their work? I’m being bullied. HR investigating an allegation against an employee of misconduct? Yep, also bullying.

Except, it’s not.

Employers need to be able to exercise their rights and obligations to give their employees directions in relation to their work and manage poor performance. Reasonable management action carried out by a manager in a reasonable manner is not workplace bullying.

For instance, if an employee is not meeting their KPI’s or is not completing work to meet deadlines, a manager has every right to provide feedback (in a reasonable manner) to that employee to address their underperformance. Unfortunately, for certain types of employees this falls into the category of “behaviour I do not like”, so they will often react and claim that this management action is bullying. Employers and managers should not be disheartened, as they are not “bullying”, but simply performing their role.

Final thoughts

Employers and managers should not avoid giving critical feedback to their staff out of fear of being subjected to a bullying complaint. An employee’s subjective belief that they have been bullied is not enough to make a finding that workplace bullying has occurred. The Fair Work Act recognises that employers and managers are entitled to perform reasonable management action in a reasonable manner. A key factor in managing complaints of bullying, and the overuse of the term bullying, is educating employees by having a workplace policy that provides clear examples of what is, and is not, workplace bullying.

Employees should avoid using “bullying” as a synonym for “behaviour I do not like”. This loose use of the term “bullying” detracts from actual instances of workplace bullying and waters down the true, very serious meaning of the word.

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May 16

Anti-social media: 4 ways to manage social media and cyber-bullying in the workplace

Whilst technology and social media have unquestionably provided many benefits to the modern workplace and opportunities for businesses to reach a wider audience, they have also presented dilemmas for HR managers and business owners when dealing with interactions between employees. With the increased use of the internet and social media, and the fact that almost everyone in the workplace now owns a smart phone and can access Facebook, Instagram and similar social media platforms 24/7, problems that used to be left at work when the day ended and everyone went home now follow people home after work hours, which can present huge challenges for employees and managers alike.

With 66% of the Australian population now on Facebook, 20% on Instagram and 17% on Snapchat[i], social media has become a huge part of many people’s lives. The impact that social media bullying has on children and teenagers has been well publicised, with many schools now introducing programs to educate students about cyber safety. However, the impact that social media and in particular, social media bullying has on workplaces has received far less attention.

In the last few years, social media has played a much larger role in bullying claims, unfair dismissal applications and workers compensation claims, with it now not being unusual for screenshots of social media conversations, statuses and comments to make their way to tribunals and Courts in support of employee’s claims.

Whilst many businesses are now taking steps to address bullying and harassment in the workplace, businesses should also be putting steps in place to address employee’s use of social media in and away from the workplace and implementing processes for employees to report anti social behaviour that they may be subjected to from other employees when using social media.

4 steps for employers to manage social media bullying

Social media and cyber bullying is often unfamiliar territory for many employers, however, there are steps that can be taken to minimise legal risk and ensure that the workplace is a safe environment for all employees.

Implement workplace policies

The best action that employers can take is to develop bullying, cyber bullying and social media policies. A policy relating to bullying should include a definition and examples of both bullying and cyber bullying as well as what behaviour is appropriate and acceptable and what behaviour is not. The bullying and cyber bullying policy should make clear the consequences for failing to comply with it, such as warnings, suspension or termination.

Employers should emphasise that the conduct does not need to occur specifically at work. The Fair Work Commission has recognised that technology and social media has blurred the line between what is “at work” and what is not.

In Bowker & Others v DP World Melbourne Limited [2014] FWCFB 9227, the Commission held that the traditional meaning of “at work” may not necessarily apply to a cyber bully as comments made on social media (in this case, Facebook) only need to be accessed whilst the employee is “at work” to enable the employee to make an application for a stop bullying order under the Fair Work Act. This means that as long as the comments remain on social media and the employee is able to access those comments whilst they are at work, the employee will have the ability to make a bullying complaint to the Commission.

For this reason, workplace policies that are implemented must adequately address the fact that they will continue to apply even outside working hours and that employee’s will be expected to comply with the policy, otherwise disciplinary action may be taken against them.

When it comes to social media and the workplace, it is not just words that may be considered cyber bullying, but also a person’s actions. In Rachael Roberts v VIEW Launceston Pty Ltd [2015] FWC 6556, it was held that “unfriending” a colleague on Facebook could be considered to form part of bullying conduct. However, “unfriending” on its own is unlikely to constitute bullying, as in this case, it was the combination of other conduct that led to the Commission finding that the employee had been bullied.

Develop a reporting and investigation process

Each workplace should develop a thorough reporting process and investigation process which is usually set out in a grievance policy. Because of the nature of cyber bullying, and the potential for it to occur outside of working hours, often the only way that employers become aware of any issues is if the employee tells them.

It is important to ensure that employees feel comfortable reporting issues to their supervisors and/or managers and that they are encouraged to do so. This means that supervisors and managers must deal with a complaint appropriately by listening, asking questions and showing empathy.

Having a policy that allows complaints to be made is vital to avoiding a bullying application being made by an employee. The Fair Work Commission expects that prior to making an application, the employee has exhausted avenues available to them to have the complaint remedied by their employer. If a business does not have a grievance policy in place, this can open the door to an employee making an application directly to the Commission without first providing the business with the opportunity to address the issue directly.

Train managers and staff

Employers have a legal obligation to provide a safe workplace for their employees. This includes training and educating their employees regarding bullying and cyber bullying and what is and isn’t acceptable behaviour in the workplace.

If a business fails to train its staff on what is and isn’t acceptable, and an employee subsequently bullies another staff member, a business can be held liable for the employee’s actions. For this reason, it is vital that all staff are given training on appropriate behaviour in the workplace and how to deal with bullying and cyber bullying in the workplace. This will also assist in countering any claim that the employer is vicariously liable for an employee’s actions as it demonstrates that the behaviour was not condoned by the business and the business took reasonable steps to train staff about expected behaviour.

Don’t ignore the issue

If a business does become aware that there is an issue between staff members or that comments or posts have been made on social media that are inappropriate, the business has an obligation to take immediate steps to address the issue.

Despite there being a tendency to want to ignore issues that crop up on social media given they can be tricky to handle, usually apply to out of work conduct and can sometimes involve petty disputes, if a business is on notice that there is something wrong and does nothing about it, there is a very strong possibility that the employer could be liable for any damage that is caused to the bullied employee’s health, if a claim were to be brought by them.

[i] https://www.socialmedianews.com.au/social-media-statistics-australia-january-2017/

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May 26

Elite performance and bullying at work – are some people flying over the radar…?

Perhaps the most alarming finding of recent Royal Commission into Institutional response to child abuse has been the fact that some of the ‘elite’ institutions, regarded by many as a society’s leading organisations, have turned the blindest of eyes to the activities of their employees. This is proof that whatever our contemporary conceptions of equality may be, the ‘sweeping under the carpet’ instinct is still alive and strong in the ‘upper’ echelons of society . But in some respects, the same thing is happening on an individual level in Australian workplaces. While it would seem that we have made great progress stamping bullying out of the workplace, it still seems that certain individuals remain insulated from sanction.

In some professional circles, normally those pursuing high performance, elite, and critical activities, the employee’s status at work and the importance of the tasks performed allow them to fly ‘over’ the radar. I remember that me and friends of mine, as a junior female solicitors years ago, had to accept that those elderly male partners billing $2M per year could get away with abusively sharp tongues or lecherously wandering hands – those in the mail room could not. This was never considered an issue of inequality – it was good business, because the firm needed that $2M more than it needed its mail. But there is plenty of evidence that this type of double standard still effects our current conceptions of workplace bullying. This article demonstrates that the medical profession is certainly an offender, as does this blog post a few months ago regarding sexual harassment in the medical industry. But there is no better example than our own former PM Kevin Rudd, whilst still buzzing on the brief high of Kevin07, conducting himself in an abusive manner towards air force employees.

But is status or social inequality really to blame for this? One of the trends I have observed, (as well as some of the very worst individual acts of bullying), has been inside the Not for Profit organizations. Generally this conduct is amongst volunteers, working altruistically for the benefit of a good cause. In some ways it seems counter-intuitive that bullying would occur in this context at all yet I’ve seen it regularly.

But while there is a radical difference between the prestigeoius and highfaultin professions such as law, medicine, and politics and the humble and altruistic charity workers and volunteer parents, there is one thread that ties them together: self-importance. It’s when someone allows themselves to consider what they are doing more important than anything else that standards of decency and compassion go out the window, and the bully emerges. Whether that be running a country, a school uniform co-op, performing open heart surgery, raising money for cancer, or billing clients millions of dollars a year. A healthy workplace does not require ‘equality’, it just requires a little ‘perspective’.

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January 14

Customer Service – Exactly How much should employees have to take?

Emily Capewell became famous just before Christmas for a Facebook spat on the Sydney Morning Herald’s page directed at her Jetstar customers. A computer glitch had created numerous delays, and numerous complaints – prompting Ms Capewell to describe them as a ‘bunch of whingers’. The Sydney Morning Herald immediately jumped on it as yet another example of an employee losing their cool in the face of customer adversity. We are familiar with this scenario: where the employee is sanctioned for bringing their employer into disrepute, and presumably for breaking a variety of express and implied contractual duties, codes of conduct, and workplace policies. These employee duties are clear.

But the interesting question in this increasingly common scenario is what is the nature of the employer’s duty to the employee? Exactly how much abuse should a customer service professional be exposed to before an employer assumes responsibility for stepping in. The hackneyed phrase “the customer is always right” may retain some currency when managing relations with customers, but I’m very doubtful it’s an effective policy for the management of employees. Customers are rarely “right”, and in relation to some customer services settings, namely airlines, restaurants, Emergency rooms, their conduct can be positively abusive. At some point, the implied duty to provide a safe system of work for employees must step in to override the supremacy of the customer, and to create positive duties on the employer. We also have the issue of bullying. It has been recognised for some time that employers owe a duty not to bully employees and to proactively prevent employees from bullying each other. It’s only a very small step to recognize this duty extending to the customer conduct which an employer exposes their staff to.

This will be an interesting area of law as it develops, and I’m positive there will be some case law soon.

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