New Bullying Jurisdiction

In a decision under the new Bullying jurisdiction, the Fair Work Commission found that an employee had not been bullied by their manager – the main argument being whether or not the managers actions had been reasonable management action carried out in a reasonable manner.

It contains an interesting discussion of what is or is not reasonable behaviour – allowing that some expression of anger is not unreasonable in certain circumstances … and that one instance of unreasonable behaviour does not comprise “bullying” behaviour:

“[65] However, when considered in the context of the whole meeting and the overall situation I am not satisfied that the way in which the General Manager opened the meeting on 30 October was unreasonable behaviour. This part of the meeting on the Applicant’s own evidence lasted only a matter of seconds. It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger. It was reasonable management action in all of the circumstances for the General Manager to forcefully communicate in both words and body language that the way in which the Applicant was interacting with him was unacceptable and that it could not continue. I accept that if this behaviour was then reinforced by repeated similar behaviour then the behaviour at the October 30 meeting should be considered in a different light and contribute to a finding of unreasonable or bullying behaviour.

[66] I agree with the Respondent that determination of whether or not behaviour is unreasonable must be done objectively. What was known or should reasonably be known about the situation of particular individuals, including their physical and emotional situation, is part of the objective circumstances. However, just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable. The General Manager had no reason on 30 October to believe that the Applicant was suffering from any illness or was particularly vulnerable.”

“[100] I have found it difficult to reach a conclusion in this matter. However, the only instance of unreasonable behaviour which I have found was the behaviour of the General Manager at the meeting of 28 November 2013 in failing to properly respond to the request for a support person at future meetings. I considered that the actions on 27 November 2013 in sending the Applicant home may have been unreasonable behaviour but on fine balance concluded that it was not. I have earlier found that the angry and aggressive tone utilised by the General Manager on 30 October 2013 should be considered in the context of subsequent actions. Considering all of the matters I am not satisfied that there were repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.”

https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC3940.htm