Below we consider the complex assessment of bullying allegations and the importance of a response that meets an employer’s WHS obligations. Our team can assist to manage these allegations and to help prepare the necessary policies and processes ahead of time.
References to bullying, risks to health and safety, and psychosocial flags have become increasingly common in workplace complaints – in particular, those made through anonymous disclosure platforms. In an environment where increased regulatory and stakeholder focus on psychological health means organisations are particularly sensitive to these concepts, their inclusion in a complaint will often trigger a significant response. For those assessing a complaint and responding to it, important questions will arise including:
- Does the alleged behaviour rise to the definition of ‘bullying’ under local law or an applicable policy?
- Where the conduct is substantiated, does it constitute ‘serious misconduct’? And if so, what flows from this?
- Who has responsibility for handling these complaints: are they to be investigated as HR or work health and safety (WHS) matters?
Below, we explore these questions with insights from the recent Fair Work Commission (FWC) decision in Frost v Ambulance Victoria [2024] FWC 2237 (Frost).
In Frost, the FWC upheld the employer’s decision to transfer from Bright to Dandenong a paramedic found in an independent report to have bullied a colleague. The FWC determined that the bullying conduct constituted serious misconduct, and that therefore under the terms of the applicable instrument, the employer’s decision to transfer the paramedic to another location over 350 kilometres away was reasonable.
What is the threshold for workplace bullying?
The FWC’s decision relied on the findings and report of an independent investigation by a former FWC Presidential Member (the Report). In the Report, the applicant employee was described as generally “rude” and “socially inept”, and it was found that he had failed to treat his colleague with courtesy, civility, respect and dignity. Examples given were that Mr Frost ignored his colleague’s greetings, belittled her contributions, and did not engage in conversation with her or acknowledge her work.
While the FWC did not make its own determination on whether the paramedic’s conduct amounted to bullying, its reliance on the findings in the Report brings into question the threshold for workplace bullying. In Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774, behaviours such as intimidation, coercion, threats, humiliation, shouting, victimisation, conspiracy to harm, and physical and verbal abuse were identified as indicative of bullying. The Victorian Supreme Court has previously described bullying as the deliberate intent of causing physical and psychological distress, mostly using unwarranted or invalid criticism, fault finding, exclusion or isolation (Carter v Dennis Family Corporation [2010] VSC 406 at [282]].
The conclusions relied on in Frost suggest that a less egregious standard of behaviour may also constitute bullying and form the basis of a serious misconduct conclusion. While this outcome undoubtedly was influenced by relevant definitions in the applicable instrument, it nonetheless follows that conduct that might previously have been dismissed as rudeness, incivility, or abruptness may, in fact, amount to bullying and require more significant response actions.
Is workplace bullying serious misconduct?
It is uncontroversial that bullying can constitute serious misconduct (as defined in Fair Work Regulations 2009 and permitting termination without notice), however in Frost, Commissioner Connolly took the view a step further stating that:
“To suggest that bullying, objectively viewed, does not amount to serious misconduct is implausible in my view.”
The above leaves little room for flexibility in the view that all substantiated bullying must be serious misconduct. Combined with a conclusion that that a less severe category of conduct (e.g. incivility) may constitute bullying, this position raises critical questions for employers:
- If any level of bullying constitutes serious misconduct, can an employer plausibly meet its own duty of care obligations without removing the perpetrator from its workplace?
- If any level of bullying constitutes serious misconduct, is termination without notice a permissible or necessary consequence? For example, does this mean repeated rudeness justifies termination without notice?
How should employers balance bullying allegations as misconduct and WHS risks?
Historically, a clear line usually distinguished responsibility across a business for responding to ‘conduct’ and ‘health and safety’ matters, and allegations of bullying and aggressive behaviour largely fell within the former. However, legislative and regulatory changes and focus on management of workplace psychosocial risks have made clear that bullying is squarely a health and safety matter, creating risk for those exposed to it.
Accordingly, decisions as to the appropriate consequences for substantiated bullying must consider: (i) whether the conduct presents a risk to the health and safety of others; and (ii) whether proposed response actions are compatible with an employer’s ongoing WHS obligations.
To ensure these matters are properly considered, employers should assess the processes in place to review and resolve complaints of inappropriate interpersonal behaviour that may constitute bullying, for example:
- At what stage is your WHS team/professional engaged in the review and investigation process?
- Are WHS experts consulted in the consideration of an appropriate outcome?
- Is your review and disciplinary process conducted and documented in accordance with any applicable WHS plans, processes or policies?
WHS advisors will continue to play a critical role where there is serious or imminent risk to health and safety, however it is apparent that they will also play an important role in the assessment of conduct that may previously have been limited to the realm of HR, ER and culture advisors.
