Guidance for Employers Defending Bullying Claims

By 26 August 2014News, Workplace
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Defending Bullying Claims

In this case, an employee manager alleged she was bullied by employees under her supervision by:

  • Making bullying claims against her
  • Other unreasonable conduct
  • Lack of management support
Applicant argued the following was unreasonable Employer opposed the application on following grounds
Making (and receipt by management) of two complaints of bullying against her CC and the employer had not behaved unreasonably towards the applicant
Acceptance of those complaints for investigation by the employer There was no evidence of repeated unreasonable behaviour
Following the favorable finding in relation to the complaint from one employee (NP), the employer took no adequate action to prevent similar inappropriate conduct (ie further complaint) from being made again There was no evidence of any risks to the applicants health and safety
Being the target of ongoing malicious rumours in the workplace without receiving support from the employer There was no evidence of a future risk of unreasonable behaviour
Being harassed and badgered on a daily basis by another employee (CC) There was no relevant behaviour to which any order might apply
CC documenting the applicant’s conduct
Being humiliated as a consequence of rumours and gossip because the employer did not notify employees as to the outcome of the complaints

 

What constitutes bullying at work – s789FD(1)

Commissioner Hampton had particular regard to the Explanatory Memorandum to the Fair Work Amendment Bill 2013, which states:

A worker is bullied at work if, while the worker is engaged by a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

Some helpful guidance for employers determining reasonable management action – requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”. In general terms, this is likely to mean:

  • Management actions do not need to be perfect or ideal to be considered reasonable;
  • A course of action may still be “reasonable action” even if particular steps are not;
  • To be considered reasonable, the action must also be lawful and not “irrational, absurd or ridiculous”;
  • Any “unreasonableness” must arise from the actual management action in question, rather than the applicant’s perception of it; and
  • Consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

Reasonable management action will be taken in a reasonable manner – is a question of fact, tested objectively. Whether the management action was taken in a reasonable manner may depend on:

  • the action;
  • the facts and circumstances giving rise to the requirement for action;
  • the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

For more information on workplace bullying please click here or contact Matt Bell in the Business and Workplace Law team at Murdoch Lawyers.

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