In recent years, workplace bullying has garnered increasing attention as a significant issue affecting individuals and organisations alike. With its detrimental impact on employee wellbeing, productivity, and organisational culture, addressing workplace bullying has become a priority for regulatory bodies and employers.
The prevalence of allegations of workplace bullying, including applications to the Fair Work Commission (the FWC) to make orders to stop bullying, underscores the need for employers to maintain effective mechanisms to address bullying, and allegations of bullying, in the workplace.
A recent decision delivered by the FWC on a case of alleged workplace bullying sheds light on the legal framework surrounding workplace bullying in Australia and provides valuable insights into addressing and preventing bullying in the workplace.
Case Summary
In a recent case brought before the FWC, Kristy-Lee Brinkworth (Ms Brinkworth) made an application under s 789FC of the Fair Work Act 2009 (Cth) (the FW Act) for anti-bullying orders to be made against her employer, Neighbourhood Retail Pty Ltd (the Company), within the South Bunbury Marketplace. Ms Brinkworth joined two of her colleagues to her application; Teresa Jackway (Ms Jackway), the Produce Manager, and Rae Whitford (Ms Whitford), the Office Manager. The Company, Ms Jackway and Ms Whitford will be collectively referred to as the Respondents in this article.
In short, Ms Brinkworth asserted that she was subjected to bullying behaviour in the workplace and the Company submitted that bullying had not occurred and that it had taken steps to ensure that bullying did not occur in its workplace. For example, the Company implemented internal policies in respect of bullying and required all management staff to undergo related training.
The FWC conducted an investigation and a determinative conference which found that Ms Brinkworth was not bullied at work and ultimately, Ms Brinkworth’s application was dismissed. However, the decision is significant as the FWC considered the ambit of sections 789FC, 789FD and 789 FF of the FW Act, undertaking a detailed analysis of the submissions and evidence of each party in applying the relevant provisions of the FW Act.
Evidence and Findings
Ms Brinkworth gave extensive evidence alleging the bullying that she faced at work and similarly, the Respondents gave extensive evidence disputing this. The evidence is summarised as follows:
Issue | Ms Brinkworth's Allegations and Submission | Respondent's Position and Submission | FWC’s decision |
Training provided | - Ms Brinkworth received training which felt unnecessary and repetitive - Ms Brinkworth received training on tasks she already felt competent completing - Ms Brinkworth felt her previous skills and experience were being disregarded and that she was treated like it was her first time working in a role | - The training given to Ms Brinkworth was the same training that was given to all employees - Ms Brinkworth only received repetitive training when Ms Brinkworth had completed a task incorrectly, which occurred regularly | - The training given to Ms Brinkworth was standard training undertaken by all new employees - It is not unusual for new employees to undergo standard training, even for tasks they know how to perform - Any extra training given to Ms Brinkworth was necessary to assist her with tasks that needed extra attention - Ms Brinkworth thinks highly of her ability and her previous work experience, and there is nothing wrong with taking pride in your work - Ms Brinkworth was sensitive to any actions, actual or perceived, that suggested she did not know how to perform her role |
Offer of Part-Time Contract | - Ms Brinkworth believed her casual contract would transition to a part-time or full-time contract - The promise to update Ms Brinkworth’s contract was never fulfilled | - There was a lack of part-time positions due to the staffing structure. This was not an exclusionary practice - There were no part-time staff and only one permanent staff member in each department - Ms Brinkworth was mistaken in believing her contract would be updated | - When Ms Brinkworth was interviewed, a role with around 20 hours per week was discussed - Ms Brinkworth did want a full-time or part-time role, however this was not promised to her - Ms Brinkworth’s employment contract should have made it clear to her that her role was a casual one |
Relocation to Another Department | - Ms Brinkworth’s relocation was a retaliatory step taken after she made complaints | - The relocation was not a retaliatory step - Ms Brinkworth was relocated after there had been a breakdown in the working relationship between Ms Brinkworth and Ms Jackway - Ms Brinkworth was relocated as Ms Jackway had concerns about her own mental health - Ms Brinkworth was relocated as a result of the financial viability of different departments | - Ms Brinkworth’s relocation was genuinely driven by Ms Brinkworth and Ms Jackway being unable to work together and work productively - Ms Brinkworth and Ms Jackway’s inability to work together was impacting both of their mental health |
Communication Issues | - Ms Brinkworth was ignored, including by not having her greetings returned at the start of shifts and having her attempts at conversation shut down | - The Respondent alleged Ms Brinkworth was difficult to communicate with, which resulted in a poor relationship | - There were clear communication issues between Ms Brinkworth and Ms Jackway - The communication issues stemmed from Ms Brinkworth and Ms Jackway having very different personalities and communication styles, as well as a lack of knowledge and processes in place to properly manage the tensions escalating between them - Ms Brinkworth and Ms Jackway’s misconstrued and poor interactions led to their interactions being unproductive for the workplace and for each of their mental health - Ms Jackway is blunt and direct and, although this is not always the most appropriate or pleasant way to communicate, particularly with coworkers who report to you, this does not translate into bullying behaviour |
Reduction in Shifts and allocated work | - Ms Brinkworth’s shifts were reduced as a retaliatory step following her complaints and Ms Jackway feeling threatened by her - Changes in task assignments caused Ms Brinkworth to feel undermined, overshadowed and lacking a sense of accomplishment | - Reductions in shifts were applied uniformly to all staff - Ms Brinkworth had a high number of unavailable days, including weekends, which affected the number of shifts she was allocated- Among the shifts Ms Brinkworth ‘lost’ were training shifts, which were removed after she expressed she did not want further training - Task assignments and rosters were altered, to the detriment of the Respondent, in order to assist Ms Brinkworth | - Ms Brinkworth’s rostering was affected by a combination of her unavailability and the reduction in casual labour at the Company’s premises overall - Ms Brinkworth’s view that Ms Jackway felt threatened by her or felt that Ms Brinkworth was out to take her job did not appear to be rooted in objective evidence
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Discriminatory remarks | - Ms Jackway made discriminatory marks in respect of work tasks which were not suitable for women | - Ms Brinkworth had ‘twisted’ an ‘innocent’ conversation and submitted this as evidence without context | - Both Ms Brinkworth and Ms Jackway took every interaction with each other the wrong way, even when there was no intention to be hurtful - Ms Brinkworth had ignored the relevant context of the story Ms Jackson had shared with her, failing to acknowledge that the story was not a pointed or a personal remark at Ms Brinkworth |
Third-parties | - Ms Brinkworth raised her concerns with Ms Jackway with Ms Whitford, who relayed the concerns to Ms Jackway | - Ms Whitford conveyed that although she knew Ms Brinkworth did not want her to intervene, she escalated Ms Brinkworth’s concerns after multiple conversations | - Ms Whitford relayed Ms Brinkworth’s concerns with Ms Jackway in order to manage the problem, not to be spiteful |
Mental Health Training and Policies | - There was an inadequate response to complaints and a lack of support | - The Respondent took active steps to address Ms Brinkworth’s complaints, including the implementation of training in respect of mental health awareness, workplace bullying, and harassment awareness, and the implementation of comprehensive policies to address bullying and grievances which were discussed with department heads and emailed to all staff | - Ms Brinkworth is genuinely upset by her experience working with the Company - The Company managed Ms Brinkworth’s concerns clumsily - If the Company had been more transparent and consultative through the process, this application may not have eventuated - The Company struggled to deal with Ms Brinkworth’s concerns - The Company did not know how to manage the conflict between Ms Brinkworth and Ms Jackway |
FWC’s power
The FWC has the power to make any order, excluding an order requiring payment of a pecuniary amount, to stop the worker from being bullied at work. To do so, the FWC must find that the three criteria in section 789FF of the FW Act are satisfied, as follows.
1. Application made
Pursuant to section 789FF(1)(a), a worker must have made the application under section 789FC of the FW Act.
The meaning of ‘worker’ in the Work Health and Safety Act 2011 applies. The FWC did not contest that Ms Brinkworth was a ‘worker’.
Further, section 789FC allows a worker who ‘reasonably believes’ that they have been bullied at work to make an application for an order to stop bullying. The FWC did not contest that Ms Brinkworth reasonably believed that she had been bullied at work. The FWC found that Ms Brinkworth’s belief that she was bullied at work was evident as there were clear workplace tensions between Ms Brinkworth and management at the Company, and that the relationship between Ms Brinkworth and Ms Jackway had deteriorated.
2. Bullying at work
The FWC must be satisfied that the worker has been bullied at work, pursuant to section 789FF(1)(b)(i) of the FW Act. The definition of being ‘bullied at work’ is laid out in section 789FD of the FW Act.
Section 789FD of the FW Act provides the definition for workplace bullying that the FWC must consider. Section 789FD provides that a worker is considered to have been bullied at work if, while they are at work in a constitutionally covered business, they experience repeated and unreasonable behaviours from an individual or group of employees, and those behaviours create a risk to the health and safety of that worker (our emphasis).
Reasonable management action carried out in a reasonable manner is expressly excluded from the ambit of s 789FD.
In deciding Ms Brinkworth’s application, the FWC found that although each witnesses’ recollections of conversations differed, they each generally agreed about the events that occurred and they each spoke genuinely about their perspectives and frustrations.
The FWC referred to Deputy President Easton’s decision in the case of Application by Mr Matthew Egan [2023] FWC 3299, highlighting that “tone and context is everything” and that the FWC is often required to determine whether “words and messages sent and received at work were innocent, innocuous, offensive, destructive, and so on”. “Innocent or innocuous” words can convey “offensive or destructive” messages depending on context and tone and vice versa, offensive or destructive messages can be “coated in innocuous or innocent words” or “delivered in the most pleasant or professional of tones”. Accordingly, the FWC must apply an objective test: “behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable”.
In Ms Brinkworth’s application, the FWC found that many of the differences in the interactions between the witnesses arose from their differing perceptions of interactions. Ultimately, in its consideration of the evidence and all the circumstances, the FWC found that the Respondents had not engaged in bullying behaviour.
3. Continuing bullying
The FWC must be satisfied that there is a risk that the bullying at work will continue, pursuant to section 789FF(1)(b)(ii) of the FW Act.
The FWC emphasised that it can only intervene and make anti-bullying orders if it determines that there is a risk of future bullying. Without such a risk, the FWC is not empowered to issue orders aimed at improving or repairing relationships in the workplace.
In this case, even if it had been established that Ms Brinkworth experienced bullying at the Company’s workplace, the FWC would not have found, at the date of its decision, that there was a current risk of ongoing bullying. Ms Brinkworth had been absent from work for several months and was only recently certified as fit to return to work. Additionally, the Company had implemented new training for managers and updated its bullying and grievance policies. In light of these factors, the FWC did not find that there was a risk of future bullying.
Orders sought
Although the criteria in section 789FF of the FW Act was not met, the FWC provided an analysis on the orders sought and the orders that could have been made if the criteria in section 789FF of the FW Act had been met.
Ms Brinkworth sought the following orders:
(a) An overhaul of the Company’s policies to include a clearly stated procedure for how complaints of bullying and harassment in the workplace will be acted on.
(b) All management staff to receive training on how to act on complaints of bullying and harassment in the workplace.
(c) To be compensated for the loss of income that has resulted from her being removed from the produce and plants sections.
(d) To be re-instated to her former hours and position in the produce and plants sections.
(e) A written apology from Ms Jackway, Ms Whitford and David Howlett, the Store Manager.
(f) All communication between the Company and herself to be conducted by email going forward.
(g) That for all meetings the Company allow Ms Brinkworth to have a support person present.
The Company contended it had already complied with (a) and (b) and would comply with (f) and (g) moving forward.
The FWC reiterated that it could not make orders in respect of (c) as this was beyond the scope of the power given to it in section 789FF of the FW Act.
The FWC determined that even if the jurisdictional prerequisites of s 789FF of the FW Act were satisfied, the FWC would have declined to make an order to re-instate Ms Brinkworth to her position. Due to the breakdown in the relationship between Ms Brinkworth and Ms Jackway, the FWC stated that such an order would not have been appropriate or helpful.
The FWC did not comment on (e).
Key Takeaways
The FWC acknowledged the genuineness of Ms Brinkworth’s distress, however, the FWC determined that this did not necessarily amount to bullying. Ultimately, the jurisdictional prerequisites of s 789FF of the FW Act were not satisfied and Ms Brinkworth’s application was dismissed.
This decision underscores the significance of addressing workplace bullying with proactive and robust measures. Specifically, employers should be mindful of:
Intentions: The case highlights the difficulty in discerning between actions perceived as bullying and those that are legitimate management actions or misunderstandings between colleagues.
Communication: Effective communication and conflict resolution strategies are essential in any workplace to prevent and manage tensions in the workplace. In turn, this can prevent the need for employees to lodge applications with the FWC, and the need for employers to defend such applications.
Prevention: The Company's response to allegations of bullying is critical. In this case, the proactive implementation of steps to address the bullying allegations was considered favourably by the FWC, despite the FWC noting that the allegations were handled clumsily. Those steps included training for management staff and the implementation of workplace policies.
By understanding the nuances of such cases, employers can better address and manage workplace conflicts to prevent bullying claims from arising, and to address allegations of bullying in the workplace before they escalate.
The legal team at BlackBay Lawyers can provide specialised and detailed advice pertaining to applications for orders to stop bullying. If you represent a company requiring advice in respect of measures to address bullying in the workplace, or if you are an employee wishing to make an application to the Fair Work Commission, please feel free to contact BlackBay Lawyers on (02) 9100 0889 or via www.blackbaylawyers.com.au for a confidential discussion with one of our solicitors.
The content in this Article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as such. You should seek legal or other professional advice before acting or relying on any of the content.
ABOUT THE AUTHOR
Julie Mehrdawi is a passionate and dedicated member of our team, excelling in Commercial Litigation, Corporate Law and Regulatory Advice, Employment Law and Defamation Law. Julie’s commitment to staying at the forefront of legal advancements in our clients' industries ensures she is able to successfully identify and mitigate legal risks, safeguarding our clients interests.
Julie’s takes great pride in her approachable nature, which allows her to collaborate closely with clients and provide tailored, expert legal advice and representation that allows her clients to succeed.
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