The Fair Work Commission has recently handed down a decision that offers some clarity on what constitutes ‘bullying’ for the purposes of the Fair Work Act 2009 (Cth) (Act), where an application for an order to stop bullying has been made by an employee in response to a working from home request being rejected by their employer.
Commissioner Simpson in Application by Dr Veronica Hampson [2022] FWC 935 (22 April 2022) (‘Hampson’) found that the conduct of an employer against its employee in rejecting a request for a 5-year working from home arrangement did not amount to bullying.
As a result, the application was dismissed finding that no orders could be made to stop bullying in circumstances where the conduct did not amount to bullying.
Note: Hampson deals with an array of alleged conduct by the employer and named individual alleged to have engaged in the conduct, although this article only addresses the question of whether the rejection of a request to work from home constitutes bullying.
Facts
Dr Veronica Hampson (Employee), an Accounting Lecturer at the University of Southern Queensland (USQ), submitted a request to her supervisor (the alleged bully) to work from home for a period of five years, being a period from 12 January 2021 to 11 January 2026.
The Employee’s supervisor responded via email that her request could not be accommodated for the 5-year period but would be willing to approve a working from home arrangement until the orientation week at the commencement of the first semester of studies.
In response, the Employee made a request for a period of working from home of 12 months, explaining to her supervisor nonetheless that her medical practitioner advised her that she had a permanent and irreversible medical condition.
Ultimately, the Employee and her supervisor agreed for her to work from home for 2 days per week, despite a medical advice provided to the supervisor stating that the Employee was fit to attend work.
As part of the Hampson application, the Employee alleged that her supervisor’s response to her working from home request amounted to bullying.
The law
In relation to bullying, the Act prescribes requirements for conduct to amount to bullying.
As a starting point, section 789FD(1)(a) of the Act requires that the behaviour towards the worker is unreasonable and repeated.
Further, section 789FF(1)(b) of the Act requires that:
- the worker has been bullied at work by an individual or group of individuals; and
- there is a risk that the worker will continue to be bullied at work by the individual or group of individuals.
An exception to the above arises where the behaviour is a reasonable management action carried out in a reasonable manner. This is more likely be a relevant question to be answered in respect of disputes over working from home arrangements.
In Hampson, Commissioner Simpson refers to the authority in Re MS SB [2014] FWC 2104, where it is emphasised that the consideration of whether a reasonable management action has been taken is an objective one. Some considerations may be:
- the circumstances which led to the action being taken;
- the circumstances during which the action was taken; and
- the result of the action.
A management action does not need to be perfected or done in manner that is preferable to a worker per se.
Findings
It was ultimately found that the supervisor’s conduct in his response to the Employee’s request to work from home did not amount to bullying conduct.
In reaching this decision, Commissioner Simpson referred to the circumstances where the supervisor received advice that the Employee was fit to attend work and where 7 prior requests were made by the Employee to work from home all of those were previously approved barring the request to work from home for five years.
Additionally, the supervisor still agreed to allow the Employee to work from home for 2 days per week, further weighing in favour of USQ and the supervisor that the conduct did not amount to bullying.
As no bullying was found, it was not necessary for Commissioner Simpson to assess any risk of ongoing bullying.
The application was therefore dismissed.
Key takeaways
Where an action is objectively reasonable, and more relevantly if a management action is taken in a reasonable manner, it will likely be found that the conduct does not amount to bullying.
Where the conduct is found not to be bullying, the Fair Work Commission’s power to make orders to stop bullying ceases and therefore an application will likely be dismissed on this basis.
In respect of rejecting working from home arrangements, the Hampson decision should not be taken to mean that the rejection of such arrangements will never amount to bullying conduct and an application for an order to stop bullying cannot succeed.
Employers need to carefully consider whether the rejection of the request to work from home is reasonable, with particular consideration of all the circumstances in which the rejection is being made and the impact this may have on the worker. If an employer fails to do this, it could very well amount to bullying conduct exposing the employer to an application for an order to stop bullying being successful.
Application by Dr Veronica Hampson [2022] FWC 935 (22 April 2022)
