When is an employee considered to have been bullied at work?
Under s 789FD of the Fair Work Act 2009, there is bullying when an individual or group of individuals repeatedly behave unreasonably toward a worker or a group of workers where the applicant is a member. The unreasonable behaviour must be repeated and it must create a risk to the health and safety of the worker.
What is “unreasonable” behaviour?
An act or behaviour is unreasonable if a reasonable person may consider it unreasonable having regard to all the circumstances. This is called the reasonable person test. It is an objective test—this means that whether behaviour is “unreasonable” does not wholly depend on the feelings of the person alleging bullying.
What constitutes unreasonable behaviour at work?
Unreasonable behaviour includes: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim blaming and discrimination.
What can you do when you believe you are experiencing bullying at work?
You can lodge an application with the Fair Work Commission and ask for an order to stop the bullying. Section 789FF of the Fair Work Act 2009 gives the FWC the power to issue orders to prevent a worker from being bullied whilst at work.
When is behaviour not considered as “bullying”?
Behaviour is not considered bullying when the behaviour is a reasonable management action that was carried out in a reasonable manner.
Even when employees’ feelings can be hurt or upset, managers at work often have to make decisions in response to poor performance of workers. These decisions do not fall under the category of “unreasonable” or bullying behaviour.
Also, when managers take disciplinary action against erring employees, or effectively direct and control the way work is carried out by them, these are not behaviour falling under the definition of “bullying.” Putting workers on a performance improvement plan is reasonable when the decision to introduce the PIP had an evident and intelligible justification cannot be considered bullying behaviour either.
It is not bullying behaviour when a supervisor overlooks an email from an employee
A newly-hired manager was required to work with a software program but she felt she had not been provided with adequate training to use it effectively. When she emailed her supervisor, the director for Staff & Strategy, the director did not reply. Six days after sending the email, she spoke face-to-face with her supervisor and asked if she can go for the training. She asked again for training on 16 November 2020 but at both instances, her supervisor just looked at the manager blankly. Because of this, the manager felt that she was unvalued and unimportant and that her supervisor made it more difficult to perform her duties.
However, the FWC believed the director who said that from his part, he did not ignore the manager’s email; he overlooked the email because he received 100 emails per day. He also denied that there were requests made to him orally by the manager but he did acknowledge that he received an email from the manager on 16 November 2020.
Not presenting an employee’s work at a meeting is not bullying
The manager created and developed a school leadership framework and sent the draft to the principal and the deputy principal on July 2020. According to the manager, the principal applauded her initiative and hard work and promised that he would present the framework during the strategic planning day. The manager then made a PowerPoint presentation for the principal to use.
According to the manager, on the day of the strategic planning, the principal did not present the framework and presented instead, his own work. The principal said that he did not have enough time to present the manager’s work.
However, the principal said that he had sent the manager an email asking her to set up a Middle Leaders Appraisal Program, not the Leadership Framework. He had asked the manager to gather relevant information from other human resources officers in other schools. Instead, the manager contacted deputy principals and met with other schools and organisations. The principal thought that the manager was unprofessional as he had never requested the framework and the manager did it instead of what he had asked her to do. Also, the principal was not even on the agenda at the strategic planning day. He was not scheduled to present anything that day.
Not allowing access to documents reserved for senior leaders is not bullying
The manager alleged that she and her supervisor had been working closely together on a Strategic Improvement Plan. She had asked him for a copy of the entire document so she could review it. However, the director refused since the document was not his, it was incomplete and likely to change, and more importantly, it was meant for the senior leadership staff only. The manager was not in the senior leadership team and had no right to the entire document. So, the supervisor sent the manager a screenshot of the relevant portion of the document. The FWC held that this was not unreasonable for the Director to have done.
Rejecting substandard work is not bullying
The manager had prepared a presentation and had asked for the principal to provide a short video introduction. A date was set for filming the message but was later cancelled. The manager accused the director, her supervisor, of persuading the principal not to provide the video introduction. She also alleged that when she spoke with the director about it, the director told her in a hostile tone that he did not support her presentation.
The director said that he never used a hostile tone but that he considered the presentation that the Manager had prepared to be inappropriate as it had never been raised or discussed in the Staff Wellbeing Committee meetings. Also, the presentation was supposed to be held on Microsoft Teams but the staff had just finished an extended period of remote learning through Microsoft Teams. The content of the presentation came from the school’s own Twitter pages and the quality of the presentation was low.
Mistakenly excluding an employee from staff meetings is not necessarily bullying
The manager alleged that she was exclude from regular staff wellbeing meetings. The director said that it was true that he had not invited the manager to two meetings. It was at the time that the director had just started in the role of director of Staff and Strategy in March 2020. He had not been aware that the manager was entitled to attend the meetings. The committee held two meetings off-site and online. When the director was made aware that the manager was entitled to attend the meetings, he apologised to the manager and immediately invited her to attend the meetings.
Giving directions to staff is not bullying
The manager alleged that even when it was part of her role to directly contact the school’s external recruitment agency, the director undermined her authority. The school was then recruiting a visual arts teacher. The director advised the recruitment agency that what was being offered was a full-time position and not a part-time position as the manager had been originally informed.
In response, the manager then emailed the recruitment agency informing them that she had received conflicting information from her superiors and asked the recruitment agency to keep her in the loop. The director emailed the manager telling her that her email was unprofessional and that they should present a united front before the recruitment agency.
The FWC found that the Director for Staff & Strategy was ultimately responsible for staffing and his contact with the recruitment agency was not unreasonable. He had no intention to embarrass the manager by giving information that was different from the information that had previously been given to the manager.
Directing an employee to do work for which they were hired is not bullying
The director told the manager to issue a contract to a casual employee who was to assist in an upcoming overnight school camp. The casual employee had previously worked for them in 2019 and had submitted a National Police Check (NPC) and a Working with Children Check. NPCs are considered current for five years from issuance. Thus, when the casual was first employed in 2019 and provided an NPC, the NPC was to be current until 2024.
The manager raised the issue that the NPC may not be current and the casual employee is to be considered a “new” employee and must be required to submit a new NPC. There was an exchange of emails and the director explained that the NPC from 2019 of the casual worker was still current. He then directed the manager to issue the contract but the manager refused.
The manager insisted that the casual employee was not a “returning” employee but a “new” employee, and argued that the casual employee needed to give a current NPC as the NPC provided was only good for six months.
To put the issue to rest, the director said that it was his responsibility to hire employees and if there would be an issue regarding the NPC, he would take responsibility for it but that the manager should issue the contract as directed as it was her job to issue contracts. In the director’s email, he stated that he found the manager’s email rude and disrespectful.
The manager replied to the director that she felt “manhandled” by the director and that when the director directed her to issue the contract, she felt that he was arrogantly using his position to pressure her into doing something wrong. Ultimately, after three months, the manager issued the contract as directed.
The FWC found that while the manager acted appropriately in raising her concerns, after her superiors had directed her to issue the contract and told her that the police check was still current, she acted inappropriately by refusing to follow their reasonable direction to issue the contract and onboard the employee.
Directing an employee to do a task that is part of her role is not bullying
On April 2021, the director instructed the manager to oversee the school’s volunteer program. The manager refused as she thought this was the responsibility of the Compliance Officer. The manager insisted that her job description said that she had the duty to onboard “employees” and not “volunteers.”
The director explained to the manager that the volunteer program had historically been managed by the Human Resources department and the predecessor of the manager left without having completed the review and onboarding. Thus, the job was given temporarily to the compliance manager to review the program from the compliance perspective. However, after the manager had been hired, it was the intention of the senior leadership for the task of onboarding volunteers to be returned to the manager.
The director sent the manager an email invitation to the handover of the volunteers, the manager refused the invitation. The deputy principal then emailed the manager and expressed his disappointment at the manager’s refusal to attend the handover. The manager replied that she felt intimidated and bullied to attend the handover and oversee the program when she was understaffed and overworked. The deputy principal sent the manager another invitation but the manager refused the second invitation.
The principal met with the director, the deputy principal and the manager. The principal raised the issue of the Manager’s refusal to follow the direction to onboard volunteers and told her to follow the director. The deputy principal offered to assist the manager with her workload and asked her to make a list of the tasks she was working on so that some of the tasks can be allocated. The manager accused the principal of “victim blaming.”
After the meeting, there was a discussion in the corridor where the director told the manager to attend the handover meeting and oversee the volunteer program. The manager insisted that the director’s tone had reduced her to tears. At the FWC, the director said that he did not use a hostile tone and instead, it was the manager who had raised her voice. The director denied that the manager was in tears when he simply asked her to fulfil a task that was within her role.
A school employee testified at the FWC that she had passed the director and the manager in the corridor and gave evidence that while she saw that they were having a serious discussion, the director appeared calm, not frustrated or angry but in shock. The school employee said it was the manager who looked agitated and upset and was talking loudly.
Suspending an employee is not always bullying
The manager met with the deputy principal and later, with the principal to escalate her concerns about being unable to work with the director. She had asked for an investigation into the director’s repeated unreasonable conduct toward the manager, his refusal to comply with child safety obligations, and his misuse of supervisory power. She further sent two emails on 5 and 13 May 2021 requesting a workplace investigation of the director’s unreasonable behaviour.
The principal testified that, at that time, he had already formed the opinion that the manager was not performing her tasks or performing to the level required, and there were issues about her attitude and conduct at work. He had also formed the opinion that the deputy principal and the director were struggling to manage the manager. Clearly, the manager’s behaviour at work had become a disciplinary issue.
Still, the principal decided to send the manager a “without prejudice” letter, advising her of the school’s concerns and intention to deal with the concerns before investigating the bullying allegations put forward by the manager. The principal offered the manager the opportunity to decide to continue work at the school or leave on mutual terms.
Upon receipt of the letter, the manager was so upset, she had herself admitted to hospital that very night. She lodged a workers’ compensation claim alleging bullying which caused her psychological harm. She did not go to work. The deputy principal suspended the manager’s work email access so that she can rest. She was given full pay.
The manager provided a certificate of capacity for a partial return to work. The principal asked the manager to seek independent medical examination on 3 June 2021 but the manager refused. She lodged two complaints for a stop-bullying order with the FWC and WorkSafe Victoria and did not begin a graduated return to work until 7 October 2021.
The FWC found that the manager’s allegations of bullying were unfounded.
Source: Application by Ms Y  FWC 6347 (16 November 2021)
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations