In a recent Fair Work Commission (FWC) decision (Application by Ms A) involving a “stop the bullying” application, the chair of a body corporate committee was found to have bullied Ms A, the co-director of a company that had been contracted to provide property management services. This case demonstrates how the reach of the Fair Work Commission’s anti-bullying jurisdiction is wider than your typical workplace setting in that those working in governance, or principal/contractor roles, can also have orders made against them. Or put another way, individuals who are in dispute in relation to their commercial arrangements, have another avenue for resolving the breakdown in relations between them. The majority of the allegations considered in this case arose from the interpretation of a management agreement.
Ms A acted as a Director of B Pty Ltd, the corporate entity providing management services to a residential complex. As part of this role as manager of the residential complex, Ms A asserted that she was subjected to bullying behaviour by Mr C, the Chairman of the Body Corporate Committee for the residential complex. The alleged behaviour included Mr C sending Ms A excessive emails at unreasonable times and directing sarcastic and derogatory language to Ms A. Ms A gave evidence in the hearing of the application that Mr C would send her up to seven emails per day querying her whereabouts, what work had been done and threatening to reduce her remuneration.
Deputy President Asbury was satisfied that Ms A was a worker in a constitutional corporation while carrying out the work as the manager at the complex. Although Ms A’s contact with Mr C was limited to occasional body corporate meetings and email, the Deputy President found that the emails sent to Ms A were directed to her in her capacity as a director of B Pty Ltd, regardless of her location when she received or read the emails. On this basis, Ms A was eligible to bring an application against Mr C as the bullying occurred in the workplace of B Pty Ltd in the context of providing services to the residential complex.
Mr C claimed his conduct was “reasonable management action carried out in a reasonable manner” and in response to Ms A inadequately performing the responsibilities under the management agreement. While acknowledging that Ms A’s performance in providing management services to the residential complex was unsatisfactory, and that the majority of issues raised by Mr C were reasonable and raised in his capacity as Chairman, Deputy President Asbury considered that the manner in which they were raised and the frequency of complaints was not reasonable. Not only were the number of emails sent held to be excessive, but significantly, they were sent outside of core working hours which was unreasonable. Mr C’s derogatory comments were found to be unreasonable and repeated, creating a risk to Ms A’s health and safety. The Deputy President was also satisfied that there was a risk this behaviour would continue. Where there were issues to be resolved, it was noted that a war engaged in by email was not the appropriate mechanism to resolve these disputes.
The Deputy President made orders requiring Mr C to confine his communications with Ms A and B Pty Ltd to the hours of 8.00 am to 5.00 pm Monday to Friday and 8.00 am to 12 noon on Saturday, unless it was an emergency. Additionally, the orders required that Mr C not make derogatory comments to Ms A including comments of a personal nature, in relation to Ms A’s credibility, or in relation to Ms A’s ability to perform the work under the contract.
While concerns about performance can be reasonable and justified, employers and those working in corporate governance roles should be mindful that articulating concerns about performance in an unreasonable manner can be bullying conduct. Performance management should be undertaken during normal working hours and involve respectful language. This case has provided some interesting points to consider:
• With the rise of smartphones and the ability to work remotely, we are increasingly expected to be connected to email outside of regular office hours. This case has indicated that, outside of emergencies, it may be unreasonable to engage in the practice of consistently sending emails significantly outside of the hours when a person is required to be contactable.
• Raising reasonable concerns about performance in a manner that is unnecessarily sarcastic and derogatory may also be bullying conduct. Under the Fair Work Commission’s stop bullying jurisdiction, the Commission may order a person to confine communication to specific subjects and not make derogatory comments to another person.
• And perhaps most critically, the anti-bullying jurisdiction does extend beyond traditional employment relationships and can extend to bullying arising in the context of a principal and contractor relationship.
Should you have any questions about this case, please contact Nicola Martin or the team at Justitia.