Belabouring the bullying

by External26 Mar 2015
Most employers know the definition of 'bullying behaviour' is hazy at best. Michael Michalandos outlines exactly where this confusion lies and what employers need to be wary of.

Early on in my career,  I was called into my supervisor's office, where he proceeded to scrunch my draft letter of demand into a tight ball and throw it at my face. As it bounced off my forehead he shouted, “this isn’t the [expletive] College of Law, Michalandos". Bullying? I was just relieved he hadn’t thrown a hardbound volume of the Commonwealth Law Reports at me, which was not an uncommon experience for other young lawyers at that time. I’ve never written a twenty-four page letter of demand again and maybe that was the idea. 

So is this bullying or effective performance management ?

At one end, we all know what a workplace psychopath looks like. They are the ones usually leave a trail of resignations. They need to leave the building now please. At the other, are the overly enthusiastic managers who regularly challenge employees with stretch targets. Are they bullies under current Australian laws ?

This question is complicated by a number of factors.

The first complication is a tendency for employees to use the term "bullying" to describe any attempt by a manager to raise a performance or conduct issue, or any genuine expression of displeasure or frustration by a manager. This is often reinforced by over zealous management.[i] It tends to go something like this:

Manager 1: "Mike called Roger a bully after Roger told him he had to meet his budget."
Manager 2: "That's serious, isn't it? Call Sir Lawrence Street. We need to conduct a Royal Commission."
Manager 1: "I will suspend everyone on full pay immediately and indefinitely."
Manager 2: "Good thinking."

The second complication is the statutory definition of bullying under federal law. This may come as a surprise to many employers, but it was not until the 1st of January 2014, that the Federal Government first introduced anti- bullying laws across Australia. These laws are not about the money. The principal remedy for a worker asserting bullying under this legislation are orders directed at stopping the bullying. 

The definition of bullying is, well, soft-boiled.

Bullying is defined under the Fair Work Act 2009 as “repeated unreasonable behaviour by an individual or group that creates a risk to health and safety”.[1]

Let's get the last condition out of the way first.  The conduct has to create a "risk to health and safety". This usually means an employee obtaining a medical certificate stating that they are suffering from "anxiety" or "nausea” or something to that effect.. In fact, the risk of a certificate is enough.

We are then left with "repeated unreasonable behaviour". It seems to me that the same specific behaviour does not need to be repeated and that a buffet of different unreasonable behaviours may fulfil the criteria
So, if you scrunch up someone's first ever work product and throw it in his face, that's okay if you only do it once?
Press pause for a moment.
Unreasonable behaviour on one occasion can land you into hot water. An employee who suffers a stress related condition because of a "one-off" incident can obtain a medical certificate and proceed to lodge a workers compensation claim. Your insurer accepts the claim, ups your premium and depending on the jurisdiction you are in, the employee gains certain immunities and rights. For example, in New South Wales, if you sack the employee because they are not fit for work within six months them first becoming unfit, it is a crime. After termination, they have a right to seek reinstatement for a period of up to two years if they get better.  You actually have to tell their replacement that you may have to let them go if their predecessor wants to return.
So one-off unreasonable behaviour is a no-go zone.
We are then left with the concept of "unreasonable" behaviour. What is "unreasonable" is assessed on an objective basis. In other words, the Fair Work Commission must consider whether a reasonable person would consider the behaviour to be unreasonable, having regard to the circumstances. 

Unhelpfully, the legislation provides that reasonable management action carried out in a reasonable manner will not constitute unreasonable behaviour. No doubt because it is reasonable behaviour[2]
Let's just say "vague".
There are no specific examples of what is unreasonable behaviour in the legislation itself. 
The draft Model Code of Practice on “Preventing and Responding to Workplace Bullying”, released by SafeWork Australia in July 2012, sets out examples of "bullying". They include:
  • undue criticism;
  • excluding, isolating or marginalising a person from normal work activities;
  • withholding information that is vital for effective work performance;
  • unreasonably overloading a person with work or not providing enough work;
  • setting unreasonable timelines or constantly changing deadlines;
  • setting tasks that are unreasonably below or beyond a person's skill level;
  • denying access to information, supervision, consultation or resources such that it has a detriment to the worker;
  • changing work arrangements, such as rosters and leave, to the detriment of a worker or workers; and
  • unreasonable treatment in relation to accessing workplace entitlements (e.g. leave or training).
The reference to reasonable management action has been purloined from workers compensation legislation. Under most state worker’s compensation laws, a worker who has suffered a worker’s compensable injury which is psychological, cannot claim worker’s compensation if the injury relates to reasonable management action, in relation to such matters as performance management, promotion, demotion, provision of benefits etc.
Obvious examples of unreasonable management action include the following:
  • setting unreasonable deadlines or targets;
  • making irrational, capricious or arbitrary decisions which may impact adversely on an employee;
  • disciplining an employee for an insignificant issue;
  • failing to give an employee sufficient warnings before proceeding to a discussion about termination; or
  • failing to permit an employee to bring a support person to a serious discussion about their employment or surprising an employee with such a discussion.
There is no requirement that the "bully" targets an employee or intends to "bully" or intimidate the employee. It is simply enough that a worker is subjected to unreasonable behaviour repeatedly.
So the answer to my question about the over-enthusiastic manager may be "yes".
This is a significant departure from how you or I would define a bully. Bullies are awful people who beat up on small children and get captured on iPhone videos. Case in point, the Macquarie Dictionary defined a bully as "a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people" or a "man hired to do violence". The Victorian Government got it right, when in 2011, it introduced the concept of bullying into section 21A of its Crimes Act.
The Crimes Act defines as typical bullying behaviours, things like "making threats to a victim", "directing abusive or offensive acts towards a victim" or "acting in any other way that could reasonably expected to cause physical harm or mental harm or to arouse apprehension or fear in the victim for his or her own safety". Now that is a definition of bullying.
Labelling someone a "bully" because they engage in "unreasonable" behaviour is like referring to an annoying spoodle as a rabid pit-bull. I am all for managing annoying spoodles, but let's get the breed right.
There is a clear incongruence here, principally because the federal bullying laws are a transplant of worker’s compensation concepts grounded in unreasonable behaviour. A low standard of bad behaviour makes sense in a jurisdiction where the default position is that an employee should be compensated for any injury or illness suffered on a no fault basis. These concepts should have no part to play in defining a bully. I would imagine that it is an awful thing to be labelled a bully. There is a stigma attached to the term, which does not appear to be recognised in the bald statutory definition under the Fair Work Act 2009. 
However, employer's should expect the Fair Work Commission to take a fairly robust approach to defining the concept of bullying. On th 30th July 2013, Commissioner Cloghan of the Fair Work Commission, did go some way to pinning down a workable definition of bullying in the decision of Harris v Workpac Pty Ltd [2013] FWC 411. The decision related to an unfair dismissal claim involving an employee who had been terminated on the grounds of bullying and harassing a fellow employee. You should expect this case to find its way into bullying jurisprudence.

Commissioner Cloghan opined:

"In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean that offending employee is "guilty of bullying" and "gross misconduct"."

Well said Commissioner Cloghan.

About the author
Michael Michalandos is a partner at Baker & McKenzie

[1] Fair Work Act 2009 (Cth), section 789FD.
[2] Ms SB [2014] FWC 2104; Amie Mac v Bank of Queensland Ltd [2015] FWC 774.
[i] I am, of course, not referring to any of the learned readers of this publication.
[1] Fair Work Act 2009 (Cth), section 789FD.
[2] Ms SB [2014] FWC 2104; Amie Mac v Bank of Queensland Ltd [2015] FWC 774.
[i] I am, of course, not referring to any of the learned readers of this publication.