Determining anti-bullying applications

The Commission's anti-bullying jurisdiction, which commenced on 1 January 2014, allows an individual who believes that they have been bullied at work to apply for an order to stop the bullying.

To be able to make such an application a worker must work in a constitutionally-covered business and the actions must meet the definition of bullying in the Fair Work Act, which states a worker is bullied if:

...an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.

The Commission is empowered to make any order it considers appropriate to prevent a worker from being bullied, other than ordering the payment of financial compensation.

Anti-bullying process

The Commission deals with anti-bullying applications in quite a different way to other types of applications, recognising the emotional nature of the matters at hand, the issues to be determined, the ongoing nature of the working relationships and the psychological issues that may accompany these matters.

Figure 14: Anti-bullying – flowchart of the process

This flowchart outlines the process followed by the Commission in dealing with anti-bullying matters.

The process

The 2014–15 reporting period

In the 2014–15 reporting period the Commission:

• received more than 150,000 unique website hits regarding anti-bullying
• dealt with more than 6300 telephone inquiries
• processed 694 applications
• received approximately 60 applications per month.

Steps to dealing with matters

The Commission must start dealing with an application within 14 days of lodgment. Processes start when the Anti-bullying Case Management Team, acting under delegation from the President, begins making inquiries to gather information for the Panel Head to assess how a matter should be progressed; for example, whether a matter should be dealt with by a Commission Member or a staff mediator. This 14-day target has been achieved in 100 per cent of matters. See Table 28 for further information on timeliness.

1. 100th percentile is the longest time (days) taken to deal with a matter.

Each application is assessed soon after lodgment to determine if it falls within the Commission's jurisdiction, the nature of the alleged bullying and how the application should be dealt with. Parties, including applicants, employers and other parties named are also contacted to advise them of the matter and to seek information to guide decisions about how the matter will proceed. This usually occurs within 24 hours of the application being lodged.

In the 2014–15 reporting period approximately 27 per cent of applications were withdrawn at this stage. A further 18 per cent of applications were withdrawn prior to any proceedings (see Table 29 – Finalisation of matters).

1. Applications withdrawn with Case Management Team or with Panel Head prior to substantive proceedings.
2. Includes matters that are withdrawn prior to a proceeding being listed; before a listed conference, hearing, mention or mediation before a Commission Member is conducted; and before a listed mediation by a staff member is conducted. This also includes matters where an applicant considers the response provided by the other parties to satisfactorily deal with the application.
3. Includes matters that are resolved as a result of a listed conference, hearing, mention or mediation before a Commission Member or listed mediation by a staff member.
4. The anti-bullying jurisdiction commenced on 1 January 2014, therefore this data relates to the date range 1 January 2014 to 30 June 2014.

Early withdrawal of applications

There are many factors which can lead to the early withdrawal of an application, including the identification of jurisdictional barriers, the preventative focus of the potential orders available, or a decision to follow alternate means of resolution. The prompt resolution of alleged bullying behaviour in the workplace subsequent to the Commission effecting service of an application is also an important factor.

Mediations

Where appropriate, matters may be referred for mediation with a qualified staff member. During the 2014–15 year staff conducted 62 mediations, mostly by telephone.

Matters dealt with by Members and resolution outcomes

The great majority of matters have been dealt with directly by Members, by conference or hearing. In most cases an informal conference is conducted by a Commission Member in order to gain an appreciation of the issues and stabilise relationships, and make directions for the hearing of the matter.

Although few orders have been made in this jurisdiction to date, a substantial number of applications have been resolved through the case management process adopted by the Commission.

These resolutions include matters where the response provided by the employer/principal is considered by the applicant worker to satisfactorily address their concerns.

In addition, many matters are resolved through conferences conducted by the Commission where mediation, conciliation and/or making recommendations has assisted the parties to deal with both the immediate issues that may have led to the application and more systematic preventative approaches.

More than 800 anti-bullying conferences and hearings occurred over the year.

Of those matters dealt with by Members approximately 46 per cent were resolved. Common outcomes have included:

• undertakings about future behaviour
• clarification of roles, responsibilities and reporting relationships
• employer to establish or review anti-bullying policies
• provision of information, additional support and training to workers
• worker to return to work on agreed conditions
• agreed relocation of individual named and/or the applicant worker.

Matters determined

Sixty anti-bullying matters were finalised by a decision. Of those in the reporting period 59 were dismissed and one order was made. See Table 30 for a full breakdown of decisions.

The Commission's focus is on resolving the matter and enabling normal working relationships to continue. It can only make an order where there is a risk that bullying behaviour directed towards the applicant worker could continue. In practice, this limits the range of circumstances where an anti-bullying order may be made.

1. The anti-bullying jurisdiction commenced on 1 January 2014, therefore this data relates to the date range 1 January 2014 to 30 June 2014.

Major cases

The 2014–15 reporting period has seen a number of significant decisions made by the Commission which have clarified the anti-bullying jurisdiction and also provided broader guidance on workplace relations.

'At work', social media and the workplace

Bowker et. al v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2014] FWCFB 9227 – Full Bench – 22 December 2014

Three DP World Melbourne Limited (DP World) employees made applications to the Commission for an order to stop bullying pursuant to s.789 of the Fair Work Act. DP World and the Maritime Union of Australia (MUA) subsequently raised a jurisdictional objection that some of the alleged bullying conduct did not occur 'at work'.

A worker can only apply to the Commission for an order to stop bullying under s.789FF if they reasonably believe that they have been bullied at work. The Commission's power to make such an order is only enlivened if, amongst other things, it is satisfied that the applicant was 'bullied at work'.

A five-member Full Bench was convened to determine the jurisdictional objection. The Full Bench concluded that the legal meaning of the expression 'while the worker is at work' included circumstances where the alleged bullying occurred while the worker was performing work although this did not cover the full range of circumstances where a worker could be regarded as being 'at work'. Being 'at work' was also not limited to the physical workplace and that it included any time the worker performed work, regardless of the location or time of day.

The Full Bench also found that a worker could be 'at work' while on an authorised meal break at the workplace. It was noted that by definition, while a worker was on such a meal break they were on a break from the performance of work.

The Bench found that it was unnecessary for them to consider whether these provisions applied where the meal break was taken outside of the workplace.

The Full Bench noted:

'It seems to us that the concept of being 'at work' encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work).'

This matter also included allegations of bullying conduct in relation to posts on social media.

The Full Bench rejected the MUA's argument that workers would have to be 'at work' when offending social media posts were made for the conduct to fall within the bullying regime as the behaviour continued for as long as the comment remained online.

The Full Bench also noted that alleged bullies need not be 'at work' at the time of their conduct.

Reasonable management action

Mac [2015] FWC 774 – Vice President Hatcher – 13 February 2015

The Commission considered an application which was made after the implementation of a performance improvement process. Orders under s.789FF may only be made by a 'worker who reasonably believes that he or she has been bullied at work'.

It was found that while the applicant's belief was reasonable, as there was something tangible to support it which was not entirely irrational, the decision to place the applicant on a performance improvement plan was not unreasonable. The conduct of the employer and named individuals was not best practice, or entirely beyond criticism, but it did not reach the required level of unreasonableness. As a result it was found there was no power to make orders sought and the application was dismissed.

G.C. [2014] FWC 6988 – Commissioner Hampton – 9 December 2014

The Commission considered an application which dealt with matters of alleged unreasonable performance management, the question of whether alleged bullying behaviour had occurred 'at work', and whether or not the applicant faced an ongoing risk to health and safety.

The application was made by an employee who contended that he had been the subject of repeated unreasonable behaviour from his Managing Director. The behaviours alleged occurred during usual work hours, outside of normal hours, and also included a conversation which occurred at a bar at an after-work function.

The Commission found that certain conduct occurred that was capable of meeting the definition of workplace bullying, however no determination was made on the issue of whether conduct had occurred 'at work', as the applicant's fixed-term contact had expired. Ultimately the Commission could not be satisfied that the applicant faced an ongoing risk of experiencing bullying behaviour.

Ongoing risk

Obatoki v Mallee Track Health & Community Services and Others – [2015] FWCFB 1661 – Full Bench – 27 March 2015

Deputy President Kovacic at first instance dismissed the appellant's application on the basis that the application had no reasonable prospects of success. Mallee Track had terminated the contract with Dove Investments and Dr Obatoki was no longer working at the Mallee Track Medical Clinic.

Permission to appeal was granted because the Full Bench was satisfied that the matter raised issues of importance and general application and thus enlivened the public interest.

The proper approach to the application of s.789FF of the Fair Work Act in circumstances where the employment relationship has ceased is an issue that has previously only been considered by single Member authorities.

The Full Bench found that the Deputy President correctly held that there were no reasonable prospects that the application could succeed. The Commission could not be satisfied that the second of the two jurisdictional pre-requisites of s.789FF(1) could be met. The Full Bench found no error in the decision of the Deputy President and accordingly the appeal was dismissed.

The 12-month review of anti-bullying matters

In early 2015 the Commission undertook a review of the case management process adopted for anti-bullying matters.

As part of this review, the Commission held two anti-bullying forums. One forum was conducted in Melbourne on 10 March 2015 and the other in Sydney on 12 March 2015. Attendees were invited based on those representatives and groups that had had an involvement with matters being dealt with in the jurisdiction including employer organisations and unions, legal practitioners, workplace health and safety authorities, government agencies, academics and Commission Members and staff. The forums consisted of presentations, and panel and plenary discussions involving key stakeholders in the jurisdiction.

A majority of attendees found that it was a valuable experience that provided an insight into the jurisdiction and how it was progressing. The discussions that arose during the forums provided an opportunity for the Commission to gather feedback and understand how effectively the jurisdiction was working. The case management model and the operations of the jurisdiction were noted in positive terms.

Actions arising

As a result of the feedback provided at the forums, a number of actions were identified including:

• reviewing and updating the Commission results and demographic frameworks to improve statistical reporting
• research into the relationship of anti-bullying applications with other Commission applications, in particular general protection applications
• reviewing and updating public information related to the practical operation of the jurisdiction, including reviewing the Anti-bullying Benchbook and the Anti-bullying Guide to reflect what to expect from the actual experience
• reviewing and updating the Commission's forms to assist both parties and the Commission
• considering further support mechanisms for parties suffering from mental health issues.

(View the larger image)

The Commission updated the Anti-bullying Benchbook in 2014–15.