The recent Fair Work Commission decisions in Brown v Park Beach Bowling Club Limited [2017] FWC 896 (Park Beach Bowling) highlights several important issues for employer’s who are subject to a complaint of bullying.

The Low Burden to Make an Application

In February 2017, the Fair Work Commission heard a bullying application brought by Ms Belinda Brown against Park Beach Bowling Club. The alleged bullying conduct included investigating complaints against Ms Brown, speaking to Ms Brown on one occasion for being rude and insubordinate, a failure to conduct the related investigation fairly, and warnings given to Ms Brown due to her rude and insubordinate conduct.

You might ask, how do allegations as trifling as these make it before the Commission?

The answer is, there is a relatively low burden placed on an applicant to bring an action under the bullying provisions of the Fair Work Act 2009 (Cth). The Fair Work Act  specifies that bullying occurs when two criteria are met:

• a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; AND 
• the behaviour creates a risk to health and safety.

The criteria of “repeatedly” simply means, more than once  and it is “a risk” to health and safety which triggers the second element.

Frustratingly this can mean that the Commission can find itself involve in matters which have little merit.

He Said, She Said

Bullying cases are often one person’s word against another’s. In Ms Brown’s case, there was an ongoing acrimonious relationship between Ms Brown and management. Allegations went back and forth including that Ms Brown referred to a manager as fat and that she responded to a request to produce her service of alcohol licence with “You’re like the Gestapo”. Fortunately for the employer, one manager  took notes of his interactions with Ms Brown. The notes were a key piece of evidence, highlighting that taking contemporaneous notes of difficult interactions between management and staff may strengthen an employer’s position if a claim of bullying is made.

Performance Management or Bullying?

The case also highlights that performance management or a single episode of unreasonable conduct undertaken by an employer is unlikely to amount to bullying. Importantly Commissioner Saunders pointed out that:

“it will be necessary for Ms Brown to appreciate… that supervisors and managers may have different views to her about operational matters and which tasks or functions need to be prioritised… she must follow the directions given to her… unless they fall into the limited category of directions that are either unlawful or unreasonable in the sense that no reasonable employer could have issued the direction.”

The Role of External Workplace Consultants

As was the case here, a claim of bullying by an employee often occurs at the same time as an investigation into their misconduct. Importantly, the Commission held that the retention of an external workplace consultant (a service which Ai Group provides) did not constitute bullying as it was a reasonable action in the circumstances. This was especially so because the workplace had no specialist human resources team. The only claim made by Ms Brown that the Fair Work Commission accepted as unreasonable conduct by the employer was an action taken out of step with the workplace consultant’s recommendations.

The Importance of Early Intervention

Responding quickly to any allegation of bullying and also correcting any deficiencies in your process or conduct can be very important in warding off a bullying claim. In Park Beach Bowling that fact that the employer had already taken appropriate action to rectify the allegations made by Ms Brown meant that even if bullying had been proved, the Commissioner would have made no orders. Ai Group is particularly focused on assisting employers to get out ahead of bullying applications and rectifying the issues before they come before the Fair Work Commission.

Do you need assistance?

For information or assistance regarding how to proceed when an employee makes a complaint of bullying or steps to carry out an investigation, contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like more intensive assistance, advice about or assistance with implementing anti-bullying policies or confidential legal advice because of a bullying complaint please contact your local Ai Group Workplace lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane, or by email info@aigroupworkplacelawyers.com.au.