Bullying in the boardroom: The Fair Work Commission extends its reach

What you need to know

• Two recent decisions of the Fair Work Commission illustrate the wide reach of the anti-bullying scheme under the Fair Work Act 2009 (Cth), and the broad scope of the Commission's powers to intervene in circumstances of alleged bullying.
• In Trevor Yawariki Adamson [2017] FWC 1976, the Commission accepted that the FW Act's anti-bullying scheme applied to the Chairperson of an Executive Board after deciding that the Chairperson was a "worker" within the meaning of the scheme.  This decision is the first to find that company directors may be covered by the Commission's anti-bullying jurisdiction.
• In Lynette Bayly [2017] FWC 1886, the Commission issued an interim order preventing an employer from continuing an investigation and taking disciplinary action against an employee, pending the determination of the employee's application for a stop bullying order.  This decision is the first of its kind and signifies the Commission's willingness to rely on its powers outside the anti-bullying scheme of the FW Act to intervene in circumstances of alleged bullying.

What you need to do

• Organisations, particularly (but not only) those in the not-for-profit sector, should be aware that successful bullying claims may be made by directors or senior executives who may not be traditionally viewed as "workers".
• Organisations should ensure that all workplace conduct, including that taking place in the boardroom between executives, does not amount to bullying or other unacceptable conduct.  This may require review of current codes of conduct, grievance processes, and any associated training.
• Organisations should also be aware that an employee's bullying application may delay or even halt an investigation process, and that the Commission may intervene to circumvent legitimate employer disciplinary action in those circumstances.
• When conducting investigations, organisations should follow a fair process to mitigate the risk of any bullying application being made.  Demonstrating that a fair process was followed and that the investigation involved reasonable management action carried out in a reasonable manner will limit the risk that the Commission will intervene to prevent the organisation from finalising an investigation and acting on the outcomes.

Trevor Yawirki Adamson [2017] FWC 1976

When Mr Adamson made his application for a stop bullying order under the FW Act, he was the Chairperson of the Executive Board of Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc).

Mr Adamson made various allegations of bullying against another board member and the General Manager of APY Inc.  The respondents disputed the Commission's capacity to hear and determine the application.

The respondents' arguments included that Mr Adamson's position as Chairperson of the organisation did not fit within any of the specific categories of worker set out in section 7(1) of the Work Health and Safety Act 2011 (Cth), which provides the definition of "worker" for section 789FC of the FW Act.

Commission accepts that Chairperson is a "worker"

Commissioner Hampton accepted that Mr Adamson was likely a "worker "when he made his application. The fact that his role did not fit neatly into any of the categories listed in section 7(1) of the WHS Act was not determinative.  Having regard to the WHS Act and its explanatory memorandum, Commissioner Hampton found that "a very wide approach to the definition of a worker" should be adopted.

Commissioner Hampton determined that the activities undertaken by Mr Adamson in his role as Chairperson represented "work", and that that work was being carried out for the organisation.  In arriving at the latter conclusion, Hampton C had regard to the fact that:

• as Chairperson, Mr Adamson could be directed to act for and on behalf of the Executive Board, provided he was acting in accordance with a resolution of the Executive Board;
• without such a resolution, Mr Adamson was unable to give directions to the staff of the organisation or make or implement any decisions, other than the calling of meetings; and
• Mr Adamson received relatively significant additional remuneration and expense payments as Chairperson.

Commissioner Hampton noted that Mr Adamson may not have been a "worker" in the sense of the traditional distinction between a manager/employer and a worker.  However, the Commissioner observed that the context in which the term "worker" was used in the WHS Act was different from its traditional meaning. 

Ultimately, the Commissioner dismissed Mr Adamson's claim on the basis that, since making his claim, he had not been re-elected as Chairperson of the Executive Board.  There was therefore no risk that Mr Adamson, as a worker, would continue to be bullied at work, which is required by the FW Act for the Commission to make orders to stop bullying.

Lynette Bayly [2017] FWC 1886

The employee, an Executive Director, brought an application alleging bullying by her employer and some of its senior executives.  The application claimed that allegations of misconduct were levelled against the employee after she made a complaint about a Senior Executive's conduct towards her.  The employee alleged that the misconduct allegations, the investigation of those allegations and some other behaviour amounted to workplace bullying.

Pending the determination of the bullying application, the employer progressed its investigation and directed the employee to attend a meeting to respond to preliminary findings.  When the employee was medically unfit to participate, the employer indicated its intention to finalise the investigation and determine the outcome without her.  The employee sought the interim order to prevent the employer doing so until her bullying application had been determined.

Balance of convenience supported interim order

Commissioner Hampton found that in the exercise of its anti-bullying jurisdiction, the Commission was empowered to make an interim order under section 589(2) of the FW Act and that one of the purposes of an interim order can be to preserve the capacity to advance a substantive application.

Commissioner Hampton considered whether the employee had a prima facie case, and the balance of convenience for and against making the interim order, and found that:

• the application had prima facie merit because the allegations, if substantiated, supported a finding of repeated unreasonable behaviour which created a risk to health and safety and the circumstances suggested the behaviour would continue; and
• the employer's inconvenience of having to employ the employee until her application was determined, when it would have been otherwise open to it to dismiss her, was outweighed by the employee's inconvenience in losing the right to have the application determined in the likely event that her employment was terminated.

Based on the above matters, the Commissioner made an interim order that the employer could not take any steps to finalise the investigation, impose any disciplinary sanction on the employee in relation to the investigation or terminate the employee's employment until the determination of the application. 

Given the possibility of the circumstances changing and altering the balance of convenience, the Commissioner granted a broad right to seek the variation or rescission of the interim order.