Two recent decisions by the Fair Work Commission in relation to applications for Stop Bullying or Sexual Harassment Orders provide illumination in one case but lead to further questions in another. Both are worthy of exploration.
The first application, filed by THDL and heard by Commissioner Yilmaz on 16 November 2021, was an application in the Commission for an order to stop bullying and sexual harassment pursuant to s.789FC of the Fair Work Act 2009. The application named two individuals employed by a neighbouring business in the same warehouse complex.
As far as we are aware, this is the first application heard by the Commission since s.789FC was expanded to include sexual harassment claims.
The Commission may dismiss an application where there is no reasonable prospect of success, and it may dismiss a matter on application.
In this case, the Commissioner dismissed the application on the grounds that:
“As THDL no longer operates a business in the same warehouse complex, the parties have intervention orders that they are not to be within 200 meters of each other, and there is no prospect of the parties being in the same location while at work, it follows that there is no risk of bullying or sexual harassment and therefore the application has no reasonable prospect of success”.
Of course, the published summary does not explore the nature of the alleged behaviour that the applicant was seeking to have addressed by the order, nor the particulars of the intervention order that the Commissioner noted in her decision.
Notwithstanding that the details may render the question irrelevant in this case, the question of whether sexual harassment can occur when the parties are not in physical proximity, is so far unanswered by the Fair Work Commission. While an intervention order provides theoretical protection against harassing behaviour and can include online harassment for example, in circumstances where, more and more workplaces are virtual, the question that is likely to persist, and be the subject of future applications.
Given the likelihood that many employees will continue to work remotely (at least in part) for the foreseeable future, now is a good time for employers to review workplace behaviour policies and employee education to ensure that their policies and expectations of employee behaviour are clear and explicit.
Donovan Christopher (J.n.r) Scott v Vita People Pty Ltd, Josie Williams
The second case, heard by Commissioner Hunt, was an application for a stop bullying order made by Mr Donovan Scott against his employer Vita People and his line manager Josie Williams.
Mr Scott made the application for stop bullying orders after his manager, with the backing and support of senior leadership and HR, placed him on a performance improvement plan (PIP), which Mr Scott disputed. The PIP had been through several iterations, following concerns raised by Mr Scott, but eventually centred on his failure to meet quarterly performance targets relating to phone contact with and classification of customers. Mr Scott argued that the performance targets were irrelevant and unnecessary, and not in his interests to complete. He also argued that the PIP was excessive because his previous performance had been satisfactory, and he had not been consulted informally on the issues contained within the PIP.
Mr Scott argued that the PIP was unreasonable, and that Ms Williams and Vita People had acted unreasonably towards him in amongst other things, implementing the PIP. He argued that others in the team were also failing to meet their targets, but were not being subjected to a PIP.
Over the previous several months, Vita People and Ms Williams argued that Mr Scott had consistently failed to meet the required performance targets set by the client Telstra. Mr Scott had been informed of the concerns but had continued to resist meeting the targets. They provided evidence that he had been instructed to break the quarterly targets down into daily targets, but had failed to complete the tasks, resulting in a 3-month period in which he failed to meet his targets. They also argued that Mr Scott had been aggressive, resistant, and argumentative towards Ms Williams when she tried to speak with him about his failure to meet the targets.
Vita People and Ms Williams refuted Mr Scott’s assertion that he was being singled out, providing evidence that other team members were meeting their targets consistently. The one example provided by Mr Scott of a colleague failing to meet targets, they said was irrelevant, because the employee in question was the only account manager in a location where there was usually 3 or 4 account managers and was therefore under a significant additional workload.
Vita People and Ms Williams therefore argued that their decision to place Mr Scott on a PIP, and the way they conducted the process, was reasonable management action carried out in a reasonable manner.
In the decision, Commissioner Hunt noted:
‘The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”. In general terms this is likely to mean that:
• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be “reasonable action” even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be “irrational, absurd or ridiculous”;
• any “unreasonableness” must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”’
In her decision, Commissioner Hunt noted that Ms Williams had ‘suitably and responsibly’ informed Mr Scott of his obligations and given appropriate support and supervision to assist him in improving his performance, but instead of doing what her was instructed to do, Mr Scott continued to argue over the requirements for several months, during which time he failed to achieve the targets set.
Commissioner Hunt noted that a reasonable employer will always try to limit the number of unpleasant tasks an employee is required to perform, but that ultimately, there will always be tasks that employees find boring, tedious or irrelevant, but which nonetheless need to be completed.
Commissioner Hunt found that:
- The task in question was a task that Telstra required Vita People to perform and Vita People paid its employees to perform these tasks.
- Mr Scott was not singled out to perform this particular task, however, he responded as though he was.
- Ms Williams’ frustration with Mr Scott’s disputation of the task was reasonable and understandable.
- In respect of requiring Mr Scott to meet the required performance indicator, Ms Williams acted reasonably towards Mr Scott.
- Ms Williams had the full support of her managers, the HR team and her employer. For Ms Williams to have been acting unreasonably towards Mr Scott, all of these managers would have had to have been acting unreasonably towards Mr Scott, which they were not.
- There was no threshold of underperformance required to implement a PIP, but had there been, Mr Scott had been underperforming in a particular task for three of the previous four months.
- Ms Williams was correct to place Mr Scott on a PIP. She did so with full authority of management. She did not need his consent to do so, nor his agreement as to what was within the PIP.
- It was reasonable and lawful for Mr Scott to be directed that he wasn’t to watch or listen to podcasts or videos for the duration of the PIP, which was only one month in length, unless it was specific to Vita People or Telstra, because he had failed to meet the other requirements of him “akin to not being able to eat dessert until one finishes their meal”.
- Vita People’s Managing Performance & Conduct Policy differentiates between remedial action and disciplinary action. The PIP that Mr Scott was placed on was remedial action and not disciplinary action, and that it was appropriate to do so in the circumstances.
In order to make final orders in a bullying application, there are two requirements under s.789FF(b) of the Act. The Commission must first have found that Mr Scott had been bullied at work by an individual or a group of individuals and secondly that there was a risk that Mr Scott would continue to be bullied at work by the individual or group concerned.
The Commissioner found that Mr Scott was not bullied at work, but rather, that Ms Williams took reasonable management action in a reasonable manner, and therefore dismissed the application.
In articulating her views about the PIP process and conduct of the parties involved, Commissioner Hunt has provided a solid defence of reasonable management in the context of performance management that is instructive for employers. In particular we note that procedures and guidance for line managers in managing underperformance and performance improvement would ideally contemplate:
- The goals and purpose of a PIP
- Whether the issues which are the subject of the PIP need to be agreed or not
- How to manage disputed PIP content
- Managing the broader employee/manager relationship during the period of the PIP
- Having difficult conversations in a productive way