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New bullying laws put to the test

New bullying laws put to the test 1024 768 MJT Law - Brisbane Employment Lawyers

It has taken only six months for the new anti-bulling laws to be tested in its first substantive decision.  In Ms SB [2014] FWC 2104 the Fair Work Commission considered an application by Ms SB to stop bulling after alleging that certain conduct amounted to bullying.  The commission also explored if the action of the employer was “reasonable management action”.

Ms SB is a Delivery Support Team Leader a position which manages a team of Delivery Support Officers.  Ms SB made the application under Part 6-4B of the FW Act, under section 789FC if a worker who “reasonably believes” that they have been bullied can apply to FWA for an order to stop the bullying under section 789FD(1) when another individual or group repeatedly behaves unreasonably towards a worker and that behaviour creates a risk to health and safety. Under section 789FD(2) it is not bullying if it was a reasonable management action carried out in a reasonable manner.

Two employees made a bullying claim against Ms SB who then made a counter bullying claim against the two.  A third party investigator was engaged by Ms SB who investigated the allegations.  The Commissioner found that the employer’s investigations were reasonable and that there was not enough evidence to find repeatedly unreasonable behaviour against her.

The Commissioner also commented on the “reasonable management action” exclusion who gave a broad interpretation stating “everyday actions to effectively direct and control the way work is carried out” that it could include any reasonable act of day to day management.  The Commissioner went on to state that the test of reasonableness was whether the action was reasonable in the context of the circumstances not whether it could have been undertaken in a manner that was more reasonable or acceptable.  The commissioner determined that Ms SB had not been bullied under section 789FD.

What to learn

Employers should review their policies to ensure they are up to date and deal adequately with bullying.  It is also important that all staff or team members receive training on the bullying policies and that when encountering an allegation of bullying or a bullying complaint that the policies are considered and followed and that an investigation is commenced promptly and effectively.

2014http://decisions.fwc.gov.au/download.aspx?doctype=pdf&edoc_id=4963495

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