Anti-bullying claim dismissed by FWC – but ‘unreasonable’ employer ordered to accept employees’ voluntary redundancy

Anti-bullying claim dismissed by FWC – but ‘unreasonable’ employer ordered to accept employees’ voluntary redundancy

The Fair Work Act defines workplace bullying to occur when ‘an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work AND the behaviour creates a risk to health and safety’.

So what is unreasonable behaviour?

According to John Boardman, iHR Australia’s Director of Workplace Relations, most definitions of workplace bullying behaviour in policies refer to either a repeated behaviour or a pattern of behaviour.

The key to what constitutes bullying behaviour, says Boardman, is the pattern of behaviour where a person might consistently or constantly act in a manner that is inappropriate. This does not necessarily mean that a person does the same thing many times but rather it forms part of a pattern of either aggressive or inappropriate behaviour that might reasonably intimidate another.

On hindsight, many cases of workplace bullying deal with what we might consider to be obvious cases of bullying behaviour. The greater difficulty for most is in dealing with or identifying what might be called low level harassment over an extended period that can be subtle such as claims of overwork or underwork and denial of access to resources.

A recent decision by the FWC demonstrates this nuance of workplace bullying.

The court had rejected bullying allegations made against an energy company’s chief executive. Instead, it ordered the employer to accept the voluntary redundancy applications made by the two employees who filed the anti-bullying claim because it deemed their employment situation to be unreasonable.

On the initial charge, Senior Deputy President Jonathan Hamberger’s dismissal of the employees’ anti-bullying application was based on the lack of evidence of bullying behavior occurring or being directed at them since the chief executive had “no (or very little) personal contact” with them.

There was “no basis on which to infer” that either the decision to refuse their voluntary redundancy application or the company’s policy of rejecting application from employees entitled to payments in excess of 52-weeks, was personally directed at them. This, along with no evidence of direct bullying by the chief executive officer was enough to dismiss the anti-bullying claims.

The employees, an auditor and a safety specialist, had both worked for the employer since the late 1980s. They alleged they were victimized and discriminated against when the employer rejected their applications for voluntary redundancy, in comparison to other employees who had received their redundancy entitlements. They argued they had been left “without a meaningful role and sufficient meaningful work” for more than two years with “literally nothing to do”, deeming this to be “repeated unreasonable behavior” that amounted to bullying.

The employees pointed out that their temporary work placements over the redeployment period were a “sham”, with all options having been exhausted and that the bullying behavior was “persistent” and “repeated” since 2014 causing them stress, anxiety and “mental anguish”. They claimed it was unreasonable for the company to continue their employment since it had no meaningful work for them and no reasonable prospect of finding them work in the future.

Their employer countered that they took “reasonable management action carried out in a reasonable manner” and that it did not meet the statutory definition at s789FD of the Fair Work Act.

When both employees’ positions were made redundant they were redeployed under the company’s new structure respectively. The auditor applied for a voluntary redundancy and was rejected in July 2014. Similarly, the safety specialist also applied for voluntary redundancy but was informed in December 2015 that his application was “on hold”. If successful, they would have both been entitled to over 78-weeks’ and 93-weeks’ redundancy pay respectively.

Senior Deputy President Hamberger said that the company had not breached the terms of the enterprise agreement the employees had been engaged under. He also ruled it was not unreasonable for the company to adopt a general policy of rejecting requests for voluntary redundancy from employees entitled to payment of more than 52 weeks.

However, what undermined the reasonableness of the policy was the employer’s inability to find useful work for employees whose roles had been abolished and who opted to take a voluntary redundancy. “There will clearly come a time – when it will have cost (the company) more to keep them on its payroll than it would have had it let them take the voluntary redundancy. The senior deputy president said keeping workers on the job while they virtually do no meaningful work was objectively “irrational, absurd and ridiculous” and easily fitted the definition of ‘unreasonable’.

Hence the court’s decision to order the company to accept the employees’ application for voluntary redundancy although the anti-bullying applications were dismissed.

iHR Australia believes it is important for employers to be able to discern what constitutes bullying behavior as the case above illustrates how the failure to recognize ‘unreasonable’ behavior or action could lead employers to make costly mistakes.

To find out more about iHR Australia’s anti-discrimination and bullying training for Managers and Team Leaders training in Melbourne, Sydney, Perth, Brisbane, Adelaide, Darwin or Canberra please contact us on 1300 884 687 or make an online enquiry.