Momirovski, Douglas, Serafini, Naumcevski, Egan [2023] FWC 3299 (8 December 2023)
A recent Fair Work Commission decision serves as a reminder that ‘tone and context is everything in many interactions at work’ and cautioned against being too quick to label behaviour as bullying without acknowledging that employees are ‘not angels’.
Workplace investigators are often asked to form a view about whether conduct substantiated by their factual findings constitutes bullying under an organisation’s workplace behaviour policy. Most policies adopt the legal definition of bullying found in the Fair Work Act 2009 (Cth), which requires repeated, unreasonable behaviour toward a worker that creates a risk of health and safety.
In this case, the Transport Workers’ Union of Australia (TWU) applied on behalf of five delivery drivers for anti-bullying orders against a supervisor with whom tensions had existed for six years. The supervisor had previously raised his own complaints about the behaviour of the drivers and a previous stop-bullying application had been made in 2020. The drivers’ 2023 application relied on around 50 incidents of alleged bullying over that time, involving alleged behaviours such as yelling, abuse and undue criticism directed at the drivers.
In this case, the drivers accepted that the words used by the supervisor were mostly reasonable, but they claimed the words were yelled or said in hostile or abusive tones (which was denied). Based on all the evidence, the Commissioner was ultimately not satisfied that the supervisor used an objectionable tone. Accordingly, the supervisor had not engaged in bullying behaviour.
The Commissioner concluded that the historical tensions had led the drivers to have a heightened sensitivity to the possibility that anything the supervisor said might be critical or hostile toward them. If the supervisor’s words could be interpreted positively or negatively, the drivers were likely to interpret them negatively.
Unfortunately, it seems to me that each of the Applicants are now proverbial loaded guns when working around [the supervisor].
In considering whether the conduct was bullying for statutory purposes, the Commission highlighted some useful considerations before labelling conduct as unreasonable or bullying.
- An objective test is applied to decide if behaviour is unreasonable: would a reasonable person, having regard to all the circumstances, consider the behaviour to be unreasonable?
- Applying the objective test can be difficult, especially when tone is important. Innocent and innocuous words when said in a certain context or delivered in a certain tone, can send offensive or destructive messages. Conversely, offensive or destructive messages can be ‘coated’ in innocuous or innocent words or delivered in pleasant or professional tones.
- Not all ‘unreasonable conduct’ is automatically bullying behaviour for purposes of the statute even if it is taken towards a worker at work and causes a risk to health and safety. ‘Repeated unreasonable behaviour’ is a concept within the statutory definition of bullying that should not be given a meaning in isolation or one that loses sight of the objective and subject matter of the stop-bullying jurisdiction. In other words, ‘there must be a bullying element to the unreasonable conduct to bring it within the jurisdiction’.
- It is appropriate to make allowances for some degree of exasperation or tension between managers and those whom they manage.
In the same way that employers must apply the standards of men and not angels to their employees…managers and supervisors are also entitled to some latitude when the Commission assess whether their management action was done in a reasonable way.
- If on some occasions the supervisor’s tone revealed his exasperation, his attempts to supervise the drivers could still be reasonable management action undertaken in a reasonable way.
- The Commissioner pointed to previous case authority to the effect that ‘the employment relationship is capable of withstanding some friction and doubts’.1
1 Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 at 190
