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Caretaker Bullying Decision

Caretaker Bullying Decision

Bullying in a workplace is unlawful in Australia.

Even Caretakers who are contractors of a Body Corporate are protected from bullying by committee members. Read this article to find out more about the decision of the Deputy President of the Fair Work Commission.

The recent decision in Application by Ms A [2018] FWC 4147 by the Deputy President of the Fair Work Commission establishes that even a contracted caretaker is protected from bullying in the workplace. Particularly, the Deputy President found the chairperson bullied the caretaker, within a Queensland Community Title Scheme, by:

  1. sending emails to Mrs A about matters which were not urgent at times that were not reasonable. The emails used sarcastic and derogatory language in relation to Ms A which was exacerbated by the fact that the emails were sent to other members of the committee;
  2. by sending emails with an unreasonable (very high) frequency; and
  3. in effect, threatening Ms A by expressing concerns in relation to the remuneration payable to the caretaker when those concerns were not appropriate (in effect threatening that the caretaker’s remuneration would be reduced).

Orders were made to stop the bullying and the identity of the parties was suppressed (including so that the proceedings could hopefully bring the dispute to an end).

The above findings and orders were made despite the committee chairperson’s concerns being found to be mostly legitimate, in that the performance by Ms A of the caretaker’s duties was less than what was required.

It is also critical to remember that the caretaker was a contractor and Ms A was a director of that caretaker company. Despite the contractor relationship, the Community Title Scheme was found to be a workplace and Ms A was entitled not to be bullied in her workplace.

The upshot is that committee members, especially those charged with liaising with the caretaker must ensure they utilise the procedures under the Body Corporate & Community Management Act 1997 in relation to performance management. Those steps should be measured, reasonable and appropriate. Bullying and harassment will likely give rise to a successful complaint to the Fair Work Commission.

This article was contributed by Michael Kleinschmidt, Director – Stratum Legal.

Leave a Reply

  1. Tony Nicholson

    at the end of the para marked 1 above the inference is that the chair should not copy other committee members in on correspondence to the Manager. I find that very difficult to understand. I would have thought that it was sound practice for the chair to keep fellow committee copied in on all correspondence so as not to act independently and as a loose cannon

  2. Allan Byham

    The Chairman and the committee have obviously been trying to get the contracted caretaker to carry out the terms of the contract. From what you have said, the Fair Work Commission has conceded that the Caretaker was not up to the task. If the Committee had spoken to the caretaker and cancelled their contract they would have no doubt been taken to court. If a contractor is designated as a worker in a work place then they could probably sue for unfair dismissal. Unfortunately it is a sign of the times. The people in the right are wrong and the people in the wrong are right. Everything is bullying these days. If someone is offended they cry bully. Grow up and get some backbone, for goodness sake.

  3. Michael Kleinschmidt

    Hi Tony, I can understand that approach, but the Commission saw it as an aggravating circumstance and, in effect, more proof of bullying because the emails were used to bring the bullying communications into the ‘presence’ of the other committee members. The point here is to always keep email respectful, measured, to a minimum volume and sent during office hours (unless there is an emergency, in which case you would use the phone anyway).

  4. Leigh J

    I would have to agree with Allan, as an ex chairperson I have had reason to critisise our Body Corp Management for poor performance and incorrect information.
    The response, workplace bullying.
    Maybe my own fault as I m not inclined to tread softly.
    But on the other hand it was OK for that same manager to accuse me at a recent AGM of sending her FILTH via e-mail.
    Absolutely no evidence to put forward when challenged, no apology, and her boss said I was in the wrong.
    Honestly, we are dealing with many different personalities all day long…….we are just getting too soft.
    It’s not worth my time effort or money to take out a deformation claim because I can’t prove it has had a substantial cost to me or my business..
    So are the scales balanced?