Stop Bullying Emails Order

The Fair Work Commission (FWC) has jurisdiction to make orders to stop bullying upon application by a ‘worker’ who reasonably believes that he/ she has been bullied at work.

Although bodies corporate rarely have employees in the traditional sense, they can still be involved in bullying claims commenced by contractors and other people who work at the scheme. The case of Application by Ms A [2018] FWC 4147 is a useful example.

Before looking at this case, we will consider the necessary elements of a bullying claim in the FWC and how these might apply to a body corporate.

Threshold issues

In order to make an application in the FWC for an order to stop bullying, the person needs to be a ‘worker’, who is ‘at work’ in a ‘constitutionally covered business’.

Importantly, ‘worker’ is broader than just an employee and includes an apprentice or trainee, a volunteer, a student undertaking work experience etc.

It also includes a caretaker or manager that undertakes work for its own caretaking business at a scheme. For example, a person who is a director of a company which has a caretaking business can be considered a ‘worker’, if the business is a ‘constitutionally covered business’. This will normally include a trading company which provides services.

In the case of Application by Manderson [2015] FWC 8231 for example, the Commissioner found that the applicant, Mr Manderson (who was a shareholder and director of a company which was the caretaker and letting agent for a scheme), was a ‘worker’ for the purposes of the Fair Work legislation.

The worker also needs to have been bullied ‘at work’. This does not mean that the conduct needs to occur while the worker is actively engaged in work – it’s broader than that. A worker will be ‘at work’ any time the worker performs work, regardless of his or her location or time of the day. For example, receiving emails after hours which was the case with Ms A, discussed below.

The bullying behaviour also needs to be repeated and pose a risk to the health and safety of the person.

The Fair Work Commission has found that the following categories of behaviour may constitute bullying: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.

Relevant facts – Application by Ms A

In this case, Ms A was a director of a company with her husband, Mr D, who was also a director. The company was the onsite manager and letting agent of the scheme pursuant to a management agreement between it and the body corporate. Ms A and Mr D carried out the onsite duties of the manager at the scheme.

Ms A alleged that she was being bullied by the chairperson of the scheme, Mr C. The main complaints by Ms A were that Mr C sent her an excessive number of emails, on a continuous basis. Ms A further alleged that Mr C tried to blame her for a range of issues with the complex and interfered unreasonably in the letting business.

The chairperson said that his conduct was reasonable management action undertaken in a reasonable way, and that his actions are in response to Ms A failing to comply with her obligations under the relevant management agreement. The chairperson said that Ms A unreasonably refused to undertake particular tasks that were within the scope of the management agreement.

There were a number of allegations made against the chairperson but some specific examples of the conduct complained of include:

• the management agreement provided that caretaking expenses be reimbursed to the caretaker. Ms A claimed that the chairperson refused to reimburse certain expenses. There was a dispute about what expenses were allowed and how they ought to be quantified. After receiving a reimbursement claim from Ms A, the chairperson responded to her in an email as follows:

“I am not in favour of paying any of this. How can you manage a complex if you cannot make the odd phone call and pick up a few things here and there. Looks like the only thing all that money is being paid to the managers for is to blow a few leaves around and trim a few trees. We can get a full time labourer to do it for half the money and he would be happy. What value are the managers putting back into the complex? Hardly any from what I can see. You need to look up the word ‘manage’ Ava and stop trying to chase every single cent. The relationship is in tatters and you need to do something about it.”

• Ms A alleged that the chairperson repeatedly questioned the duties in the management agreement and made unreasonable demands. Ms A referred to several emails to demonstrate her claim that the chairperson used abusive and used aggressive language towards her when making these demands. The chairperson submitted that asking Ms A to do what she was paid to do did not amount to bullying. In respect to emails sent to Ms A after hours and as late as 11pm, the chairperson said that it was not unreasonable to raise these issues outside of ordinary business hours, arguing that property managers’ duties and responsibilities could not be confined to ordinary business hours.
• Ms A alleged that the chairperson demanded work that was outside the scope of the management agreement, and sought to accuse the caretaker of being in breach of the agreement if they did not perform the work.

The Commissioner ultimately found that Ms A had been bullied, and that she had been bullied by the chairperson sending her emails:

• about matters which were not urgent at times which were not reasonable; and
• which included language that was sarcastic and derogatory, which was exacerbated by the fact that the emails were disseminated to other members of the Committee.

The Commissioner acknowledged that ‘Ms A’s performance as a manager or a director of the entity providing management services to The Complex [left] much to be desired’, and that Ms A was not blameless in the situation.

The Commissioner also found that there were very few issues raised by the chairperson in his emails with Ms A that were not reasonable to be raised in his capacity of chairperson.

However, the Commissioner was satisfied that notwithstanding these things, the manner in which the chairperson articulated those issues and the frequency of his emails were not reasonable. The Commissioner made orders to stop the bullying including orders which dealt with the timing, subject matter and content of any future emails to be sent by the chairperson to Ms A.

Key takeaways

A contractor or person who undertakes work at a scheme can be a worker for the purposes of the Fair Work regime.

Although there may be limited capacity for a body corporate to manage or control the conduct of its individual residents, it may be subject to orders by the FWC in an attempt to stop bullying behaviour by one of its residents – for example, by requiring it to implement anti-bullying policies.

Committees should ensure that they are dealing with contractors in a civil and respectful manner. This will not only (hopefully) avoid exposure to a claim in the FWC, but also help to build a positive relationship with its contractors.

This article was contributed by Meagan brown, Nicholsons Solicitors.