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“Borderline” behaviour not bullying under FW Act

3 June 2014

When an individual is subject to unreasonable and inappropriate behaviour in the workplace, it can be easy to assume this automatically constitutes bullying or harassment. However, a recent decision from the Fair Work Commission (FWC) has revealed that borderline unreasonable conduct may not fall under the scope of the Fair Work Act.

The case has been discussed previously because of Commissioner Peter Hampton’s findings and comments around reasonable management action. However, there are further lessons to be taken from the case, which involved a manager who believed members of her team were acting in an unreasonable manner towards her. Specifically, the manager claimed one particular employee had made false allegations against her, spread malicious rumours and was harassing her on a day-to-day basis.

The manager also submitted allegations against her employer, as she believed her employer had failed to take adequate measures to prevent the bullying and should not have initiated an external workplace investigation when presented with the employee's allegedly false accusations.

When addressed by the FWC, the manager's case was found to be lacking in sufficient evidence against the employee. While an independent workplace investigation had uncovered partial proof of the employee's allegations, the manager's claims seemed to be unfounded.

Training

"I am not satisfied that the alleged behaviour occurred and/or was unreasonable in the context that it occurred," Commissioner Peter Hampton said in his report.

"In particular, I cannot be satisfied, based upon the evidence ... that the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to health and safety."

The Commissioner also reviewed the claims that the employer had acted unreasonably by arranging an external investigation. He expressed in his decision that the reaction of the employer was the "only reasonable and prudent response".

This is an encouraging result for employers across Australia as it supports their ability to make independent and informed decisions regarding workplace investigations and bullying.

However, while the FWC decision states that bullying was not present in this case, the behaviour of each individual was still able to cause significant conflict and distress within the workplace. Anecdotal evidence from iHR Australia’s workplace investigators also shows that in many cases, where bullying is alleged but not found, inappropriate behaviour exists which may escalate to become a risk to health and safety, and therefore could eventually constitute bullying.

For this reason, it is important that employers are able to identify when conduct may cause tension and impact on the health and wellbeing of employees as well as affecting the business.

iHR Australia offers workplace bullying and harassment training that can help managers and staff understand and identify bullying behaviour. Training for managers also includes how to respond to harassment and bullying claims quickly and effectively.

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