Repeated instances of unreasonable behaviour do not necessarily constitute workplace bullying

To constitute bullying in the workplace, the test of ‘repeatedly behaving unreasonably towards an employee’ requires more than a mere finding that unreasonable behaviour has occurred repeatedly.

While this appears confusing, it was confirmed and explained by the Industrial Court of Queensland in the recent case of Greenall v State of Queensland (Queensland Corrective Services) [2021] ICQ 19.

Application to the QIRC for an order to stop bullying

Mr Greenall was employed by the State of Queensland as a Queensland Corrective Services dog handler. Mr Greenall claimed that he was bullied by his manager, Mr Swann, on 17 separate occasions. Mr Greenall applied to the Queensland Industrial Relations Commission (QIRC) for an order to stop bullying in the workplace.

Of the 17 incidents, the QIRC concluded that there were three instances where Mr Swann behaved unreasonably.

1. In September 2018, Mr Greenall was involved in an altercation with two employees. Mr Greenall provided a written report on the altercation to Mr Swann, as requested, but was later abused by Mr Swann for not standing up for one of the other employees. Mr Swann unreasonably expected Mr Greenall to have stepped in to end the altercation, and this was not reasonable management action taken in a reasonable manner.
2. In February 2019, Mr Swann stood over Mr Greenall, pointed his finger towards his chest, and berated him over a dog bite incident, as if it were Mr Greenall’s fault. This was unreasonable and the conversation should have been conducted in a more professional manner, not in front of other employees.
3. Between December 2019 and January 2020, Mr Swann gave Mr Greenall additional duties while he was acting in Mr Swann’s role for two weeks, requiring him to complete three full-time roles. Mr Swann used deficiencies in Mr Greenall’s performance and erroneous complaints as a basis to place him on a performance improvement plan. It was unreasonable to assess Mr Greenall’s performance as deficient while he was balancing a temporary additional workload.

Under the Industrial Relations Act 2016 (Qld) and the equivalent provisions in the Fair Work Act 2009 (Cth), an employee is bullied in the workplace if an individual or group of individuals repeatedly behave unreasonably towards the employee and that behaviour creates a risk to the employee’s health and safety.

The QIRC (and the Fair Work Commission) can make an order to stop bullying if it is satisfied that the employee has been bullied in the workplace and there is a risk that the employee will continue to be bullied in the workplace.

While the QIRC accepted that three of the incidents constituted unreasonable behaviour, they were not of such gravity that they demonstrated repeated unreasonable behaviour that constituted bullying. Mr Greenall’s application was dismissed.

ICQ’s consideration of repeated unreasonable behaviour

Mr Greenall appealed the decision to the Industrial Court of Queensland (ICQ) and argued that the Commissioner erred in law or misdirected herself as to the definition of workplace bullying.

Mr Greenall submitted that the phrase ‘repeatedly behaves unreasonably towards the employee’ requires nothing more than a finding that unreasonable behaviour has occurred repeatedly. He argued that since the QIRC accepted three instances of unreasonable behaviour, that amounted to unreasonable behaviour occurring ‘repeatedly’.

The State of Queensland opposed this, arguing that once there are proven instances of unreasonable behaviour, a judgment must then be exercised to determine whether that constitutes bullying.

Adopting the reasoning from previous decisions, the ICQ found that the expression ‘repeatedly behaves unreasonably’ must be interpreted in light of the subject matter, that is, bullying at work. The purpose of the stop bullying provisions is to establish a mechanism by which bullying of an employee at work may be stopped.

The ICQ held that the Commissioner did not misdirect herself on the construction of the definition of workplace bullying. Mr Greenall’s appeal was dismissed.

Lessons for employers

Employers should ensure they are familiar with the meaning of workplace bullying and conduct regular training with managers and employees. If granted, orders to stop bullying may be highly onerous, expensive and time consuming for businesses.

Employers should also ensure that their bullying and harassment policies and complaints handling procedures are up to date, as the Commission may have regard to procedures available to employees to resolve grievances when considering the terms of a stop bullying order.