14 June 2018

Effective management may prevent bullying orders

Employers who can demonstrate they can effectively deal with bullying conduct may avoid bullying orders being made by the Fair Work Commission (FWC).

Key impacts

  • Employers should take proactive steps to reduce the risk of ongoing bullying by investigating complaints of inappropriate behaviour and putting in place measures to reduce the likelihood of reoccurrence
  • Creative solutions may be needed to retain employees while reducing the risk of repeated bullying
  • FWC will generally only intervene by making orders in circumstances where there is a risk of continued bullying

Facts

Darren Lacey and Chris Kandelaars (the Applicants) are bus drivers employed by Murrays Australia Pty Ltd (Murrays). Andrew Cullen was a manager at Murrays and his responsibilities included the training and supervision of drivers, recording breathalyser results, investigating incidents and assessing and disciplining drivers.

The Applicants sought bullying orders from the FWC against Mr Cullen on the basis that Mr Cullen had bullied a group of employees of which the Applicants were members. The alleged behaviour included:

  • excessive and unreasonable fault finding;
  • falsely accusing drivers of not following procedures;
  • aggressive and intimidating behaviour;
  • applying indirect and inappropriate pressure on drivers not to comply with fatigue and logbook requirements; and
  • punishing and humiliating employees.

Following complaints made by the Applicants, Murrays investigated Mr Cullen’s conduct. Murrays accepted that Mr Cullen had engaged in some inappropriate behaviour, but argued when viewed in context it did not amount to bullying. As almost all of the bullying occurred in the context of Mr Cullen investigating incidents and assessing and disciplining drivers, Murrays decided to remove him from these roles. Murrays altered Mr Cullen’s duties so he was only responsible for training drivers and recording breathalyser results.

In the three months between these changes and the hearing, only one complaint was made against Mr Cullen, which Commissioner Roe did not consider to be a serious incident of unreasonable and inappropriate conduct.

Outcome

Under section 789FD of the Fair Work Act 2009 (Cth) (FW Act) in order to obtain orders, Applicants must establish that:

  1. Bullying has occurred, that is, repeated unreasonable behaviour that constitutes a risk to health and safety that is not reasonable management action carried out in a reasonable way; and
  2. There is a risk that bullying will continue if orders are not made.

In relation to (a), Commissioner Roe found that the Applicants were subject to behaviour that constituted bullying under the FW Act. Commissioner Roe considered it essential that Mr Cullen’s behaviour was recognised as bullying because:

  • it sends a strong message to Mr Cullen and should reduce the likelihood for further unreasonable action;
  • it should assist the drivers affected to regain some confidence and dignity; and
  • it should assist management in taking the necessary steps to be more supportive of the drivers and to regain their confidence.

In relation to (b), the Commissioner found that “the risk of the conduct continuing had been very substantially reduced by the change in Mr Cullen’s role”. The evidence provided by the drivers demonstrated that Mr Cullen was a good trainer and there were no allegations of inappropriate behaviour when Mr Cullen was working in this role.

Based on the effect of his finding that bullying had occurred and the substantial changes already made by Murrays, Commissioner Roe did not find that there was a risk that the bullying would continue if he did not make the orders. Accordingly, the Commissioner declined to make any orders.

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