Frost v Ambulance Victoria [2025] FWCFB 94
KEY TAKEAWAY
A Full Bench of the Fair Work Commission (FWC) has held that a finding of bullying in a workplace investigation will not automatically amount to serious misconduct for disciplinary purposes. It will be a question of degree.
The case
A paramedic challenged a disciplinary sanction transferring him to another location after an independent workplace investigation concluded he had bullied a female colleague.
While the paramedic did not challenge the investigator’s bullying findings, in a dispute brought to the FWC, the paramedic argued the transfer was unreasonable because his behaviour did not constitute ‘serious misconduct’. If not serious misconduct, transfer was not a sanction available to the employer under the applicable enterprise agreement.
The investigator’s findings of bullying related to conduct described as ‘generally rude’, failing to respect women, ignoring a colleague’s greetings and not engaging in conversation with her, belittling a colleague’s contributions and failing to create a respectful environment.
It’s a question of degree
At first instance, the Commissioner held that the investigator’s findings of bullying equated to serious misconduct entitling the employer to impose a transfer as a disciplinary sanction.
The employee appealed the Commissioner’s decision. On appeal, the FWC Full Bench quashed the initial decision holding that:
- for conduct to amount to bullying under the Fair Work Act 2009 (Cth) it is ‘sufficient that a person has behaved unreasonably at work on two occasions towards another, and that this has caused a risk to health and safety’. That, however, says nothing about the seriousness of the conduct.
- cases of bullying ‘may range across a spectrum of seriousness’. Some conduct meeting the statutory definition will be ‘very serious’ and ‘some is not’.
“For example, there will be cases where a person has behaved unreasonably, but marginally so, and the risk to safety is one that is peculiar to the personal circumstances of the complainant and could not have been known to the first person. Such a case would come nowhere near amounting to misconduct, let alone serious misconduct, nor would there be any fair basis to condemn the person for marginal unreasonableness, or to label the person a ‘bully’, with all moral opprobrium that is associated with that word in contemporary society.”
The case was ultimately referred back to the Commissioner at first instance to determine whether the substantiated conduct constituted serious misconduct.
Lessons
The moral of the story? Bullying will not always amount to ‘serious misconduct’. Just like other forms of misconduct, conduct that meets the statutory definition of ‘bullying’ may range from serious to less so, and the sanctions that will be considered fair and proportionate will likely depend on the degree of seriousness.
Reflections for investigators
Workplace investigators make findings on the balance of probabilities, applying the Briginshaw principle1 which requires a consideration of the seriousness of an allegation, and the possible consequences of a finding, when weighing the evidence.
The Full Bench’s decision that bullying can range across a ‘spectrum of seriousness’ may be relevant for workplace investigators when applying the Briginshaw principle. This is because depending on whether bullying conduct rises to the level of ‘serious misconduct’ or falls short, different consequences might apply which an investigator may need to factor in.
1 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938)
The Briginshaw standard – which holds that “the more serious the allegation, the stronger the evidence needed” for an investigator to be reasonably satisfied that the alleged behaviour occurred – is explained in further detail in Chapter 8 of the industry-recognised handbook, Workplace Investigations: Principles and Practice (2nd edition).
More information
Q Workplace Solutions’ national team of legally qualified and licensed investigators are trusted by public and private organisations, including ASX-listed companies and government agencies, to investigate complex and often highly sensitive allegations of employee wrongdoing. We also undertake reviews of organisations, divisions or units, and provide training, coaching and external advisory support to internal investigators and teams.
To find out more about how we can support you and your team, contact us on 1300 944 049. For upcoming investigations training workshops visit our dedicated training arm, Q Workplace Training.
