Can directors access bullying protections under the Fair Work Act?

July 6, 2017

Under the Fair Work Act 2009 (Cth), workers can make applications to the Fair Work Commission to stop bullying at work. Two recent cases have highlighted that directors of companies or not-for-profits are covered by the jurisdiction of this legislation, and can make applications for stop bullying orders.

 

What is bullying?

A worker (or group of workers) is ‘bullied’ if:

 

  • a person or group or people repeatedly behave unreasonably towards that worker (or group of workers) at work; and

  • the behaviour creates a risk to health and safety.

 

‘Unreasonable behaviour’ includes victimising, humiliating, threatening or intimidating.

 

Who can be bullied?

The anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) depends on the definition of ‘worker’ in the Work Health and Safety Act 2011. This definition is broad because it is intended to ensure health and safety protection for all workers (including contractors, subcontractors, labour hire workers etc) rather than just employees who are covered by the Fair Work Act 2009 (Cth).

 

In the case of Adamson (19 May 2017), Commissioner Hampton confirmed that a ‘director’ is a ‘worker’, taking into account the applicant’s work and his significant remuneration for undertaking that work. Considering the broad definition of a worker as a person who “carries out work in any capacity for a person conducting a business or undertaking,” this decision may seem to be expected. However, it is a surprising result considering the prevalence and importance of robust discussions at the board level.

 

Ongoing risk of bullying

Ultimately, the application considered in Adamson (19 May 2017) was dismissed as there was no risk that the applicant would be bullied in the future. In this case, the applicant was chairman of a statutory corporation, Anangu Pitjantjatjara Yankunytjatjara Inc. By the time the case was decided, the applicant had not been re-elected to the board of the corporation. The Commissioner considered that there was no future risk of bullying of the applicant in his capacity as a worker attending work with the individuals of the corporation.

 

Contrast this with the case of Kypuros (1 June 2017), which involved an employee applicant, and two directors (one being the applicant’s father). The applicant submitted evidence that one of the directors had bullied him. Both the applicant and the defendant director submitted CCTV footage as evidence, which showed violence between these parties. There was also some animosity between that director and the applicant’s father. Commissioner Wilson decided that the order should not only cover the applicant and the director, but also the father who had experienced the effects of the conduct and could be drawn into future disputes. In this case, there was clearly a high likelihood that the bullying would continue in the future.

 

Risks of bullying in the board room

Bullying applications present management risks to companies and not-for-profits. For example, if stop bullying orders are made, an individual (or group of individuals) could be prevented from being within the proximity of the applicant. The interim orders in Kypuros prevented the applicant and the relevant director from communicating with each other by any means or be within 10 metres of each other. If such an order was made involving two directors, this could have a serious impact on efficient decision making and running board meetings. The period between the time the application is made and the decision could also delay board decision making.

 

Regardless of Fair Work applications, having a bully as a director can also prevent optimal management decision making. Bullying can stifle debates, and impede the board from properly applying due diligence to every business decision.

 

How can companies manage the risks of directors bullying and being bullied?

 

  1. Companies need to ensure that proper anti-bullying policies are implemented, and that all workers (including directors) are trained in those policies and anti-bullying practices.

  2. While robust discussions will always be a feature of the boardroom, all board members must keep these discussions civil. Companies must ensure that board deliberations do not descend into personal attacks, threats, humiliation or abuse.

  3. Companies also need to have appropriate grievance, disciplinary and investigation policies in place. All workers must know how they can complain internally about bullying, and the potential consequences of bullying another worker.

 

If you need assistance dealing with a bullying application or preventing future applications, please give Jenkins Legal Services a call on 02 4929 2000 or email office@jenkinslegal.com.au.

 

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