The decision of Commissioner Peter Hampton in the Fair Work Commission on 12 May (Ms SB  FWC 2104) reveals more about the operation of the new bullying jurisdiction.
In this case the parties names were anonymised in the decision in an effort to preserve the ongoing relationship. This shows the focus of the bullying jurisdiction is on resolution of the complaint and maintenance of the ongoing employment relationship. This approach also reduces the reputational risk to parties involved in bullying proceedings.
The case involved allegations of bullying by a manager (the applicant) towards her subordinates and by the subordinates to the manger. The decision accepts that:
- bullying can be undertaken by subordinates against their manager but that vexatious allegations can constitute bullying, and
- varying levels and types of investigation may be appropriate but conducting an investigation in an unfair way may also constitute bullying.
Reasonable management action is a broad qualification to bullying. The test expressed in the decision is whether the behaviour is reasonable management action carried out in a reasonable manner. The question is not whether the management action could have been undertaken in a more reasonable or more acceptable way. Commissioner Hampton determined that this means generally that:
- Management actions need not be perfect or ideal to be reasonable
- A course of action may be reasonable even if particular steps are not reasonable
- Action will be unreasonable if it us unlawful or if it is ‘irrational, absurd or ridiculous’
- Unreasonableness must arise from the action not the applicant’s perception of it, and
- Action that involves a departure from established policies and procedures of the employer may still be reasonable if the departure was reasonable in the circumstances.
Despite suggesting in his decision that there were ‘some cultural, communication and management issues in this workplace that should be addressed by senior management’, Commission Hampton did not make any negative findings against the employer.
Finally, a risk to health & safety won’t necessarily arise from all unreasonable behaviour. In the case referred to above the Commissioner found a ‘limited degree of unreasonable behaviour’. This was in the form of a failure to adequately support the applicant after an investigation into allegations against her and some undermining of the applicant by her manager. But this behavior did not constitute bullying because the Commissioner was not satisfied that it created a risk to health and safety (despite evidence of the applicant’s medical treatment).