Insight,

Effective management may prevent bullying orders

AU | EN
Current site :    AU   |   EN
Australia
Belgium
China
China Hong Kong SAR
Germany
Italy
Japan
Singapore
Spain
UAE
United Kingdom
United States
Global

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.

LATEST THINKING
Insight
On 2 August 2022, the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 was passed (Aged Care Bill), introducing important regulatory changes to Australia’s aged care sector. The Bill makes numerous legislative amendments, including to the Aged Care Act 1997 (Cth) (Aged Care Act) and the Aged Care (Transitional Provisions) Act 1997 (Cth) (Transitional Provisions Act), and responds to various recommendations made by the Royal Commission into Aged Care Quality and Safety (Royal Commission) Final Report (Report). The Report identified the provision of substandard aged care services and perceived systemic failures in the aged care sector.[1]

08 August 2022

Insight
The Federal Court has refused an application to stay proceedings to quantify compensation for patent infringement (quantum proceedings) pending the outcome of separate parallel proceedings challenging the validity of the infringed patent on new grounds. The case is significant as intellectual property cases are regularly bifurcated with liability determined separately damages or an account of profits. A patentee may also bring consecutive infringement cases and therefore have two separate cases considering invalidity issues for the same patent running in parallel.

03 August 2022

Insight
Since the introduction of a nationwide Marketing Authorization Holder (MAH) system in 2019, licenses have linked directly to therapeutic products rather than manufacturers.

03 August 2022