Arising from an evidently tense interpersonal relationship which deteriorated over the span of several years, a Victorian teacher has brought 16 allegations of workplace bullying before the Fair Work Commission (the Commission). The teacher from Catholic College in Victoria (the College), Ms P, has alleged various incidents of unreasonable behaviour and conduct brought on by the College’s Principal, Ms F. Commission Deputy President Gostenick has held that four of the 16 incidents brought before the Commission were substantiated.

The facts

Ms P, a teacher employed by the College, made an application on 25 May 2015 for a 'stop bullying order' under section 789C of the Fair Work Act 2009 (Cth) (the Act). Upon hearing the submissions, the Commission ruled that four incidents of workplace bullying, when taken together, constituted repeated unreasonable acts of workplace bullying which caused risk to Ms P’s mental health.

The incidents were:

• a poorly executed Annual Review Meeting that provided Ms P little in the way of positive feedback;
• a series of misleading comments about Ms P’s long service leave application;
• a mandate requiring Ms P to undertake an induction course and training upon return from long service leave; and
• the allocation of a mentor upon Ms P’s return from long service leave which was a derivation from standard policy and procedure as no other staff member had ever been assigned a mentor after returning from less than twelve months leave.

It was held that these actions were insulting, embarrassing and humiliating and that Ms P was exposed to “multiple and repeated instances of isolation, targeting, disparagement to other staff and demeaning treatment” which affected her mental health.

In its order, the Commission has mandated a facilitated/mediated series of meetings with the aim of repairing the working relationship of the two parties.

Workplace bullying: Legal grounds

While not all management decisions taken at schools are required to be of “best practice”, actions which fall below the threshold of “reasonability” for being irrational, absurd or ridiculous, can amount to workplace bullying.

Workplace bullying is defined as repeated unreasonable behaviour towards a victim that causes a risk to the victim’s health and safety. Behaviour will be deemed unreasonable where it is irrational, absurd, ridiculous or significantly different from established policies and procedures. Under section 789FF of the Act, the Commission has broad discretion to make any order considered appropriate to prevent a worker from being bullied.

The three requirements which a worker must meet to establish an incident of workplace bullying include:

• the making of an application under s 789C of the Act;
• a reasonable belief that the worker has been bullied at work by an individual or group of individuals; and
• a reasonable belief that the work will continue to be bullied at work by the individual or group.

The worker must establish that their belief is “reasonable” in the sense that there is evidence to support it or some rational basis for holding the belief that is not irrational or absurd. Moreover, the worker must be bullied "at work”. This, however, is not confined to the physical workplace and a worker will be deemed as being “at work” any time the worker performs work, regardless of his or her location or the time of day.

A key requirement is that the alleged bullying constituted “repeated unreasonable behaviour”. This includes behaviour that is victimising, humiliating, intimidating or threatening. There is no specific number of incidents required for behaviour to be “repeated”, nor does it require that the same behaviour be repeated.

In the case at hand, the unreasonable discretionary managerial decisions made by Ms F were malicious decisions that lacked evident and intelligible justifications. They thereby constituted “repeated unreasonable behaviour” which consequently created a risk to Ms P’s health and safety.

What is not workplace bullying?

The Commission heard 16 complaints, 12 complaints were dismissed by the Commission for failing to meet the required level of seriousness.

One of the claims related to a staff meeting in which Ms F had allegedly sternly rejected suggestions made by Ms P to the point where she was “upset by her abrupt, angry tone and body language and was embarrassed in front of my colleagues”.

The Commission rejected this claim on the basis that it was impossible to definitively interpret body language, gestures and tone of voice. For an act to constitute “workplace bullying”, it must be deemed unreasonable, humiliating and threatening from the perspective of a reasonable person in the given circumstances. In this case, not all incidents were “unreasonable” from a third party perspective due to their highly subjective and situation-specific nature.

What can schools do?

In the opening remarks of his judgment, Deputy President Gostenick, emphasised that it was a “sad indictment” on the capacity of two educated professionals and the College that third party resolution was required. The question therefore arises: what could the school have done differently?

Throughout the course of her employment, Ms P had raised the issue of bullying within the College and had highlighted the need to update the College’s Bullying Policy to better accommodate complaints. The College’s current policy listed Ms H as the complaints officer however Ms H had resigned from this position in 2013. As a result of this, Ms P held that there was no staff member with which she could raise her concerns, apart from Ms F herself who was the subject of the complaints.

This highlights the need for schools to ensure that they have clear policies in place so that, in the event of personal conflict, teachers and parents can voice their concerns without fearing any backlash or retribution and ensure that their concerns be handled in a transparent way in accordance with clear procedures. In addition to having internal grievance and complaints handling procedures, it’s important for schools and staff to keep detailed records to help recall and establish events, especially if the events in question are contentious.

This case provides important guidance as to what factors might constitute reasonable action in a defence against a bullying allegation made by staff.  It’s also an important reminder that a failure to follow WHS policies and procedures when dealing with bullying complaints from staff might prevent a school from successfully arguing that it has acted “reasonably” in taking certain management action against an employee.