In an unusually long and detailed decision stretching over 100 pages, the Fair Work Commission (Commission) has dismissed an application by an investment fund Portfolio Manager seeking ‘stop bullying’ orders against his direct manager (Head of Strategy) and his employer (Funds Management Company) after six days of hearings.
The Portfolio Manager made a series of more than 20 highly particularised complaints about the Head of Strategy, including alleging that he had made negative comments about the Portfolio Manager’s work performance, made various changes to the funds for which the Portfolio manager was responsible, and making allegedly ‘unreasonable’ requirements for the way in which portfolios were to be managed. The Commission was also asked to rule on whether it was unreasonable for the Head of Strategy to accept a speaking invitation at a conference instead of allowing the Portfolio Manager to give the presentation.
The Commission’s Approach
In assessing the alleged conduct of the Head of Strategy, the Commission repeatedly noted that part of that role was to manage the work of the Portfolio Manager and the manner in which it is performed. The Commission went on to note that ‘management will and often do, make decisions and take action that may turn out to be incorrect or simply be seen as poor decisions’ and that this, or a worker’s dissatisfaction with the decisions taken, will not alone be enough to amount to unreasonable behaviour which would amount to bullying. The Commission confirmed this is so, even where the worker’s objections ‘may have been soundly based’ so long as the Head of Strategy was acting within his authority and for a proper purpose.
However, the Commission was satisfied that some conduct by the Head of Strategy was unreasonable. For example, the Commission considered that the Head of Strategy’s email to the Portfolio Manager describing the Portfolio Manager ‘trying to go over [his] head’ to the Chief Executive Officer as ‘a big move for you’ had a threatening undertone and was unreasonable behaviour. The Commission also considered that the Funds Management Company’s decision not to provide the findings of an investigation into his earlier complaints was unreasonable, especially considering that it had a policy stating that usually the findings of such a complaint will be provided.
Notwithstanding that it found certain instances of conduct to be unreasonable, the Commission declined to make any orders. The Commission found that, given the limited and isolated nature of the complaints the Commission found substantiated, there was insufficient evidence that there was a real risk that the behaviour would continue.
What to Know
It is important to bear in mind that the Commission approaches bullying as being defined repeated unreasonable behaviour towards a worker while at work that creates a risk to health and safety. The Commission will only make orders to stop bullying if it considers there is a risk that the bullying will continue, and it is appropriate to do so in the circumstances of a case.
Often, bullying concerns are best handled before a worker gets to the stage of applying to the Commission. Early steps, such as the implementation of appropriate policies surrounding bullying and prompt investigation and handling of complaints can avoid matters progressing to the Commission and assist in defending claims if they are later filed. If you have any concerns about workplace bullying, please contact Nick Stevens, Luke Maroney, and Daphne Klianis.