We are advising on an increasing number of bullying claims brought by employees of our clients.

While most complaints are brought appropriately, some employees seek to use a bullying claim as a shield to divert an investigation or disciplinary procedure into their own conduct.

The recent decision of Tanka Jang Karki [2019] FWC 3147, expresses concern about the ulterior approach taken by some employees in accessing the stop bullying jurisdiction of the Fair Work Commission (FWC).

In particular Deputy President Sams commented:

'In my opinion, it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that disciplinary outcomes themselves repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act's stop bullying provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.'

Deputy President Sams continued:

'For some time, I have been troubled that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose for which it was never intended by the legislature. This has been a strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance. This case is an obvious example of this improper purpose.'

Let's look at the precise wording of the Fair Work Act which defines when a worker is bullied at work:

  1. A worker is bullied at work if:

(a) while the worker is at work in a constitutionally‑covered business:

(i) an individual; or

(ii) a group of individuals

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) that behaviour creates risk to health and safety.

To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

To amount to bullying there needs to be 'repeated unreasonable' behaviour that creates a risk to health and safety. 

Further it is clear that bullying and therefore the FWC's jurisdiction does not apply to 'reasonable management action carried out in a reasonable manner'.

The FWC dismissed the application.

Reasonable management action

It is vital for employers to ensure that they have in place appropriately worded disciplinary investigation policies and procedures and managers implement them appropriately when conducting investigations into employee conduct and performance.

Employers should also seek legal advice prior to implementing any proposed disciplinary action to be taken against employees as a consequence of the investigation to reduce the likelihood of successful claims being made under the Fair Work Act and/or workers compensation.

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Josh Abbott

Josh Abbott

Jenny Gillespie

Jenny Gillespie

Sophie Kermeen

Sophie Kermeen