In applications for orders to stop bullying, the conduct of an employer will not constitute bullying under section 789FD of the Fair Work Act 2009 (Cth) (FW Act) if it can be shown that the particular conduct is “reasonable management action carried out in a reasonable manner”.
In some cases, the alleged bullying behaviour will relate to changes that an employer has made to the usual processes and procedures of the business – which can have adverse consequences for some workers.
For example, in a recent application for stop bullying orders, a logistics co-ordinator company was required to prove to the Fair Work Commission (FWC) that changes to its ordinary practice for delivery and distribution were “reasonable management action” and not bullying behaviour toward a particular subcontractor.
In Fox v Bollore Logistics Australia Pty Ltd T/A Bollore Logistics Australia Pty Ltd; Davie  FWC 1111, the FWC heard allegations that the company and a Warehouse Team Leader of the company bullied the subcontractor by making deliberate decisions to change its usual practices in an effort to victimise him and frustrate his capacity to perform his work.
In or about May 2017, the subcontractor had made an inappropriate and offensive comment to the Team Leader. Shortly after this comment was made, the Team Leader was advised by the company to keep the relationship with the subcontractor “purely professional”, and decisions were then made to:
(i) offer deliveries that the subcontractor normally ran to another courier company; and
(ii) change its distribution practices to prevent delivery drivers from entering the delivery dock to assist with packing products (something that the subcontractor often assisted with).
The subcontractor alleged that he was the preferred delivery driver for those particular deliveries and that the Team Leader was going out of her way to ensure that the goods were not ready for delivery by him.
The subcontractor also submitted that the company had no real basis to change its distribution practices as both he and the company economically benefitted from his assistance.
The company argued that these changes were at all times reasonable management action intended to ensure that they complied with their contract to meet the needs of their client.
It was submitted that there was no obligation on them to use only the subcontractor as the driver for those particular deliveries and further, they often received only very short notice for those particular deliveries, which required them to arrange a courier instead of the subcontractor.
The company also pointed out that the subcontractor had not suffered any loss of income – in fact, the invoices showed he had an ongoing and consistent stream of work and income from the company.
The FWC accepted the company’s arguments and noted that the subcontractor had failed to produce any evidence that he was the exclusive delivery driver. Whilst he may have been preferred to do the deliveries and he provided exceptional service, this did not create a guarantee of exclusive delivery.
It also accepted that it would be “highly unusual” for a company to allow contractors to simply walk into their warehouse or delivery dock and handle stored goods without proper authorisation or paperwork.
As a result, the subcontractor had failed to establish that the company and the Team Leader had “repeatedly behaved unreasonably” for the purposes of section 789FD of the FW Act.
The FWC commented that whilst the subcontractor’s comments were inappropriate and offensive, it was “extremely unfortunate” that it had resulted in the deterioration of an otherwise good working relationship. It was suggested that, whilst the Team Leader’s alleged conduct did not amount to bullying, it was indicative of an employee who was not necessarily working with the best interests of the company and its clients in mind.
Lessons for employers
Where possible, employers should be upfront with their workers about changes to usual business processes and procedures and the reasons for those changes – especially if they might have adverse consequences for workers.
Taking these steps early on in the process will minimise the risk of a worker thinking that the changes are intended to “bully” them and may assist employers if they are later required to prove that such action was “reasonable management action” and not bullying behaviour.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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