In a recent bullying decision, the FWC was not satisfied that the test of ‘repeated unreasonable behaviour while at work' had been met.
In Hammon v Metricon Homes Pty Ltd T/A Metricon Homes and others, a construction site manager was found to be the victim of inappropriate workplace behaviour including a poster likening him to a dwarf, a dare to engage in an arm wrestle and an email threatening to stop his pay.
However, the Fair Work refused to issue stop bullying orders because the inappropriate conduct was committed by various staff members who were not acting “in concert”, which the Commissioner found did not constitute “repeated unreasonable behaviour”.
When the employee tried to appeal his case, the Full Bench found no fault with the FWC’s original decision.
Employers whose staff members experience mass bullying at work need to step in quickly to investigate and put a stop to the bullying behaviour, or risk costly litigation claims, says McDonald Murholme lawyer, Bianca Mazzarella.
Mazzarella says that for bullying claims to be successful, the inappropriate conduct needs to be repeated behaviour and not an isolated event, and successful group bullying claims need to show that the staff members in question were complicit in ganging up on a particular individual.
“This case illustrates that individuals who are ganged up on by numerous individuals at work will have little recourse unless the behaviour of each individual concerned is repetitious, according to this decision,” Mazzarella told HC Online.
In this case, the bullying claim failed as the Commissioner found that the bullying claim was not repetitious and the incidents were not unreasonable behaviour.
“Effectively, Commissioner Roe was not satisfied that the test of ‘repeated unreasonable behaviour while at work’ was met,” Mazzarella says.
“In my view, the issue in this matter is that the Applicant was bullied by numerous people at work, however, the behaviour of specific individuals was not found by the commissioner to be repetitious and was found to be reasonable behaviour.”
Mazzarella defines unreasonable behaviour as “behaviour that goes beyond reasonable management action and is aimed at demoralising the employee which places the employees’ health and safety at risk.”
Mazzarella says the Commissioner was also not satisfied that the four individuals were not acting together to harm the applicant.
“The significance of the Full Bench’s decision is that the law in relation to individuals being protected when bullies act in concert with one another is in my view deficient,” she says.
Mazzarella says HR professionals and employers need to take bullying seriously and sufficiently investigate complaints and enforce procedures to deal with same to avoid cases like this being litigated.
“The employer should have implemented measures/procedures to ensure that if allegations of bullying were made, they were investigated and dealt with appropriately, including issuing warnings or disciplinary measures where appropriate,” she says.
“The group of individuals concerned should have been addressed and a procedure for the applicant to raise complaints and investigation policies should have been implemented by the employer to ensure the safety of the applicant.”
In Metricon’s case, the employee’s bullying concerns were clearly not addressed adequately or the applicant would not have taken this matter to the Fair Work Commission, Mazzarella says.
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