Does out-of-hours contact by an employer to an employee amount to workplace bullying?

Case: Ms A [2018] FWC 4147

Area of Law: Employment – Application for an order to stop bullying

Act: Section 789FC Fair Work Act 2009 (‘the Act’)

Note: Names of parties and business have been altered in order to facilitate the continuation of an on-going safe and productive working relationship between the parties.

Story 

Ms A alleges that Mr C bullied her in the workplace of B Pty Ltd. Although Ms A was a director of the onsite care-taking service contractor she was not directly employed by the body corporate.  Ms A and her husband Mr D are directors of B Pty Ltd. Mr C is the chairman for the Body Corporate Committee for the complex.

The Allegation

According to Ms A, Mr C displayed bullying behavior towards her on multiple instances  resulting in eleven specific allegations. There was also the conduct of bullying involving excessive and continuous emails by Mr C to Ms A. Ms A also further asserted that Mr C tries to blame the manager for a range of issues with the complex and he is expecting her to undertake tasks or responsibilities that are not included in the management agreement. 

Mr C asserted that his conduct is reasonable management action taken in a reasonable way. In addition, he asserted that his actions are in response to Ms A failing to comply with her responsibilities under the management agreement. 

Legal provisions 

The legislative provisions dealing with applications for orders to stop bullying are contained in Part 6-4B of the Act. 

Section 789FC outlines the application for an FWC order to stop bulling.

Section 789FD defines when a worker is bullied at work. 

Consideration of management agreement 

Of particular relevance to the present dispute is item 1(w) of Schedule 1 which provides (as varied by deed executed on 2 June 2014):

The Manager shall attend at the office or otherwise be contacted by mobile phone between Monday to Friday 8.00 am to 5.00 pm and Saturday 8.00 am to 12.00 noon or such other reasonable time as agreed with the body corporate.  While not in attendance at the Managers lot the Managers must display a notice visible from the outside of the office stating a phone number at which they can be contacted or advising as to the Managers location within the property.”

Under cross-examination Ms A agreed that she did not reside on a full time basis at the property but maintained that Mr D did reside at the property and performed the management services in accordance with the agreement. Ms A also states that she carries the mobile for the manager to contact her on. Mr C contended that the mobile is never answered. 

Mr C’s conduct 

According to Ms A, she had met Mr C at body corporate meetings and that the bullying began before she moved out of the complex. Ms A felt that the unreasonable and continuous emails sent to her by Mr C caused her undue stress.

Ms A argued that Mr C would send up to seven emails a day querying where she was, what work had been done and also threatening to reduce the manager’s remuneration or terminate the contract. 

Mr C engaged in sending emails to Ms A at unreasonable times outside of the hours which the onsite care-taking service contractor was required to be contactable. In addition, none of the issues raised in these emails constituted emergencies. 

In addition to this, Mr C used sarcastic and derogatory language in the emails and published those comments to other body corporate committee members. In particular, Mr C sent emails referring to Ms A as a liar, made comments about her credibility, ability to perform the work required under the engagement and her command of English.

Ms A said that this behaviour had caused her to move away from the Complex and had impacted on her family life because of the stress she felt and had led to her marriage breaking down.  

What was the Commission’s decision?

  • Mr C’s conduct was unreasonable and repeated and his behavior created a risk to the health and safety of Ms A and affected her personal well-being.
  • Under section 789FF of the Act, the Commission was satisfied that Ms A is a worker and that Ms A reasonably believes that she has been bullied at work.
  • The Commission noted that Ms A was not blameless in the situation in which she finds herself. 
  • The Commission concluded that the bullying conduct involves Mr C sending emails to Ms A about matters which are not urgent at times which are not reasonable. In addition, the inclusion of sarcastic and derogatory language in relation to Ms A form part of the bullying conduct and this was exacerbated by the fact that the emails are distributed to other members of the committee of management of the body corporate. 
  • The Commission noted that most of the emails dealt with issues which are reasonable for Mr C to raise as chairman of the body corporate committee for the Complex, however, the manner in which he articulated those issues, and the frequency of his emails was not reasonable.
  • Further, this findings also applied to issues relating to concerns regarding remuneration payable to B Pty Ltd under the management agreement as email communication is not the appropriate platform to resolve these disputes.  

Accordingly, the Commission made an order to prevent Ms A from being bullied at work. The order dealt with the timing, subject matter and content of any further emails Mr C sends to Ms A. The orders required Mr C to attempt to contact the manager by telephone before sending an email in relation to a particular issue. In order to facilitate this, it will be required that Ms A ensures that Mr D has a mobile upon which he can be contacted by members of the body corporate committee and residents of the complex in accordance with the management agreement.

Takeaway point

This case is an important reminder to Employers that reasonable working relationships are important to maintain. Expecting unreasonable contactable hours as well using sarcastic and derogatory language in regards to other members of the committee can regarded as bullying behavior. Employers need to ensure they are addressing any issues, concerns or tasks in a reasonable manner and at a reasonable time.


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