Fair Work Act 2009 s.789FC - Application for an order to stop bullying

Application for orders to stop bullying – application dismissed

[1] This decision concerns an application by E. E. (applicant) under s 789FC of the Fair Work Act 2009 (FW Act) for anti-bullying orders against the Australian Association of Social Workers (AASW) and two named individuals, C. J. (second respondent) and A. W. (third respondent). In response to a request from the applicant, and for reasons given on transcript, I have decided to refer to the applicant, and also to the individual respondents, by their initials. The AASW is a not-for-profit professional association, and a company limited by guarantee. The second respondent is the vice president of the ACT branch management committee of the AASW. The third respondent is a member of that committee. Both individual respondents are volunteers of the AASW. The applicant is a director of the AASW. She contends that she has been subjected to bullying by the association and the two individual respondents, including in connection with various online comments posted by the individuals about directors of the AASW. The respondents deny that the applicant has been subjected to bullying. They submit that none of the relevant conduct occurred at work and therefore could not constitute bullying for the purposes of the FW Act. They contend that in any event, the conduct was not unreasonable, did not pose a risk to health and safety, and did not amount to bullying.

[2] The Commission may make an anti-bullying order if it is satisfied that a worker has been ‘bullied at work’, and that there is a risk that the worker will continue to be bullied at work (s 789FF(1)(b)(i)). A worker is ‘bullied at work’ if, while the worker is at work in a constitutionally-covered business, an individual or group of individuals ‘repeatedly behaves unreasonably towards the worker’ and that behaviour ‘creates a risk to health and safety’ (see s 789FD(1)).

[3] The applicant gave evidence that the respondents had behaved unreasonably towards her in various ways. In summary, her evidence was as follows:

•  Since becoming a director of the AASW in November 2021, the applicant had experienced bullying and harassment online. This had occurred on Facebook as well as on professional networking websites. In response, the applicant had sent defamation letters to various members of the AASW.

•  The online bullying escalated in September 2022 when the AASW agreed to moderate an AASW Facebook page for the upcoming AASW elections for directors. The page was moderated poorly and allowed the site to become a vehicle for AASW members to bully directors by posting unreasonable negative comments that criticised directors and contained misinformation. The applicant’s requests of the AASW to improve its moderation of the site were refused. The bullying comments remain published on the AASW elections Facebook page.

•  The applicant was concerned about the existence of a link on the AASW elections Facebook page to a new group called ‘Independent Social Workers Group - Australia’ (ISWA). She believes that the purpose of this group is to publish false and malicious content about directors, including by questioning their adherence to ethical standards, and that comments posted by various persons on this site constitute bullying against her and other directors.

•  The applicant made an internal complaint to the AASW about certain online comments made by the second respondent to the effect that the applicant had behaved unethically. The applicant considers that the complaint was not dealt with in accordance with the AASW’s dispute handling procedures and was wrongly dismissed.

•  The third respondent had bullied the applicant by bringing an internal complaint about her to the AASW. The applicant believes that the third respondent’s complaint was motivated by a ‘spiteful form of factionalism’ and was an attempt to subvert the normal election process.

•  The AASW’s decision to consider the third respondent’s complaint against the applicant was unreasonable and constituted bullying because in fact she had done nothing wrong. It was also unreasonable that some six weeks after the third respondent’s complaint was made, the applicant had still not been provided with a copy of it.

[4] The applicant said that the bullying of directors was of concern both to her and to other directors, and that the psychological health of directors was at risk. She said that ‘disgruntled and spiteful AASW members’, including the second and third respondents, were seeking to defame, bully and harass her, including by suggesting in online posts that she was not behaving ethically as a director, and that this presented a risk to her mental health. The applicant said that these comments appeared to relate to her publicly expressed support for a candidate in the AASW elections, which some online participants, including the two named respondents, considered to be inappropriate.

[5] The respondents submitted that the Commission had no power to issue an anti-bullying order in this matter because the conduct of which the applicant complained had not occurred ‘at work’, and therefore did not meet the description of bullying in s 789FD(1). They also denied that any of their conduct had been unreasonable, or that it had posed any risk to the applicant’s health and safety.

[6] The AASW denied that it had moderated the elections Facebook page poorly and said that in any event, its conduct was not unreasonable and could not amount to bullying. It further submitted that the election webpage was open from 31 August 2022 to 28 September 2022 in order to facilitate the election and that it had now been archived and could only be accessed by persons who had posted material on that page. The AASW said that the applicant had chosen to engage with the elections Facebook page, and that she had not been required to do so in her role as a director of the AASW. The other Facebook page to which the applicant had referred, the ISWA page, was a third party page over which the AASW had no control. The applicant’s interaction with that site was not related to her work and was not a requirement of her role as a director.

[7] The second respondent submitted that until recently she did not know who the applicant was. In September 2022, the applicant had begun to make complaints about her, apparently in connection with comments that she had posted online about directors of the AASW. The second respondent said that she does not wish to have any contact with the applicant in the future, and that she has blocked her on every conceivable channel. The second respondent said that she had begun to feel unsafe and regarded the applicant as the real bully in this matter.

[8] The third respondent said that she had no relationship with the applicant and that it appeared that the anti-bullying complaint against her concerned a single comment that she had made on the AASW Facebook page, in response to a ‘how to vote’ card shared by the applicant. The third respondent had expressed her concern that it was not ethical for a current board member to be supporting a particular candidate in the AASW elections. She said that this was her genuinely held view; she considers that, because directors have both status and power, their support for particular candidates can influence the outcome of elections and that this is not appropriate. The third respondent said that she had expressed her view in a respectful manner on a single occasion, and that this could not be regarded as bullying.

Consideration

[9] In my opinion, the application must be dismissed because the conduct of which the applicant complains did not occur ‘at work’. Although the modern workplace can extend beyond the physical to the virtual and online world, work-related online posts would only occur ‘at work’ if they had a rational connection with the work that the applicant was required or expected to perform. In the present case, I do not consider that the online posts made by the two named individuals or anyone else had such a connection. These were online discussions about upcoming elections of the AASW. It was not part of the applicant’s role as a director of the AASW to involve herself in online commentary on the AASW elections or to support or comment on particular candidates. The applicant’s involvement with the elections Facebook page was not a work-related activity. The page was available to all members and candidates of the AASW for the purposes of the elections. A number of comments stated or suggested that it was inappropriate for a current director such as the applicant to be supporting a candidate. These comments related to the applicant’s position as a director, but they did not relate to the work that the applicant is required to perform as a director. The fact that some of these comments were made on a website that was being moderated by the AASW is not sufficient to bring the activity within the domain of work. The moderation of the site was undertaken in the association’s capacity as a membership organisation, not as an employer, a principal, an organisation receiving services from an officeholder, or as any other workplace participant.

[10] But even if I had concluded that the relevant conduct occurred ‘at work’, I would have determined that it did not amount to bullying. In relation to the online comments, the applicant submitted to the Commission printouts of posts that she considered to have constituted bullying. A number of comments are critical of the actions of directors in general, and, directly or indirectly, of the applicant. However, I do not consider that any of these online comments were unreasonable. This does not mean that the criticisms are necessarily valid. Reasonable minds may differ about many things, including aspects of the proper role of a director. Of itself, it is not unreasonable for a person to express a genuinely-held opinion that the conduct of a director is unethical. Further, I do not consider that any of the comments contained misinformation. Misinformation is false or inaccurate information, particularly information that is intended to deceive. Contrary to the applicant’s contention, it is not misinformation to express the view that a director has behaved unethically by endorsing a candidate in the elections. This is an opinion, not a misrepresentation of fact.

[11] I do not propose to set out all of the online comments that were submitted to the Commission by the applicant. It will suffice to cite some examples. In one of the online exchanges of which the applicant complained, the third respondent stated that she was uncomfortable with current board members (such as the applicant) posting how to vote cards online. The applicant then responded that she was not just a director, but also a private practitioner and a social worker. The third respondent replied that directors have a certain level of power, and that by telling people how they were voting, directors ‘may not be in line with ethical practices’ regarding fairness and equality for candidates. In response to this, another person, apparently targeting the third respondent, and in support of the applicant, posted a definition of ‘troll’. I find that there was nothing at all unreasonable about the third respondent’s comment. It was not an instance of trolling or bullying. The third respondent raised a legitimate question about whether it is appropriate for directors of the AASW to be supporting candidates for election. She expressed her view respectfully, in moderate language, and explained the rationale for her concern.

[12] In another online post submitted to the Commission by the applicant, the second respondent stated that the ISWA had been set up because of ‘questionable behaviour in other groups, run by people with conflicts of interest or self-serving ideals’, where ‘power imbalances were rife’ and ‘dissent [was] silenced’. The second respondent went on to critique other sites and said that people should be aware that those sites were run by current board members and candidates for election to the board. I find nothing unreasonable about these remarks, or the posts that preceded and followed them. The comments do not identify the applicant. But even if she is identifiable, the remarks are not offensive or inappropriate. They reflect the expression of a point of view. They may be confronting or even upsetting for people like the applicant who may consider that they are the object of such statements but that fact does not make the remarks unreasonable.

[13] In my opinion, none of the online posts submitted to the Commission by the applicant are unreasonable. This is so, whether the posts are taken individually or as a whole. They did not constitute bullying.

[14] The applicant contended that, in addition to the posts that she had submitted to the Commission, there had been various other online comments made by the two individual respondents and other members of the AASW that, in the opinion of the applicant, amounted to bullying (the further posts). After the conclusion of the proceeding, the applicant sought to have the Commission require the AASW to produce the further posts; the applicant said that her earlier requests of the AASW to provide her with access to them had been denied. I advised the applicant that the proceeding had concluded and that it would not be appropriate, or fair to the respondents, to allow her to reopen her case and seek production of documents that could have been sought prior to the proceeding. Further, the applicant had already submitted a large number of posts as evidence of the online comments that were the subject of her application.

[15] Because the online comments were not unreasonable, I do not consider that there was any failing on the part of the AASW to moderate the election pages of the AASW website. And it was not the AASW’s responsibility to regulate the posts of the ISWA group. Further, there is simply no basis for the applicant’s conjecture that the purpose of the ISWA group is to publish malicious content about directors of the AASW.

[16] The applicant has not substantiated that the AASW failed to adhere to its dispute handling procedures in dealing with her complaint against the second respondent. Further, I do not accept the applicant’s contention that the third respondent’s complaint about her to the AASW was an act of bullying. As mentioned above, the third respondent raised a genuine concern about the applicant’s conduct because she did not believe that current directors of the association should publicly endorse candidates in the AASW elections.

[17] The applicant suggested that it was unreasonable of the AASW to accept the third respondent’s complaint against her for consideration. I reject this. Plainly the board must take seriously a complaint against a director. It cannot simply reject it out of hand. A decision to investigate a complaint does not imply that any view has been formed by the board as to the merit of that complaint. The applicant said that she had discovered that the complaint had been sent to all board members, and that this was not normal or appropriate. But the CEO of the AASW explained that the normal practice is that complaints against directors are sent to all board members except the director against whom the complaint has been made. She said that a complaint against a director is required to be dealt with by the board, and it is for the board to determine the appropriate process. In this case, the board had determined to appoint an external investigator. I accept the CEO’s account of these matters. None of this is surprising or unreasonable.

[18] The applicant said that on 21 October 2022, a document had been circulated among directors and some AASW staff, in which a comment appeared from an unnamed director that the behaviour of ‘a couple of board members is putting the effectiveness of the board and the association at risk’, and that there must be ways of ‘managing poor behaviour quickly and effectively’. The applicant believed that this was a reference to her, and that it was connected to the third respondent’s complaint against her. But there would be nothing unreasonable in a director holding concerns about the proper conduct of directors and the effectiveness of the board and expressing a point of view. The applicant also said that, when she called her professional indemnity insurer, the person she spoke to on the telephone seemed to be aware of the issues that she had been experiencing at work and was reluctant to help her, and that this was another ‘potential breach’ of her privacy. But these contentions are simply too vague and speculative to amount to any cogent claim of bullying.

[19] The applicant contended that the AASW had acted as a ‘manipulating bystander’ by ‘influencing bullying actions’ and that it had been an accessory to bullying. I reject these contentions. The applicant was not bullied by the AASW or the other respondents.

[20] I note that it is now some six weeks since the third respondent made her complaint to the AASW about the applicant, and that the applicant has still not received a copy of the complaint or any formal allegations. The AASW submitted that the complaint was being investigated by an external investigator, and that the complaint related both to the applicant and another director, which meant that it was not appropriate to provide the applicant with the complaint. It said that the investigator would be providing the applicant with the relevant allegations in the coming week. It is not clear to me why the AASW, or its investigator, could not have promptly given the applicant a redacted copy of the complaint, or a summary of the allegations against her. Nevertheless, even if the AASW were to be regarded as having acted unreasonably in this regard, it was a single act or omission. Bullying is repeated unreasonable behaviour that causes a risk to health and safety.

[21] I find that the applicant has not been subjected to repeated unreasonable behaviour from the AASW or the other respondents, or anyone else. For this reason, even if the relevant conduct occurred at work, the applicant was not ‘bullied at work’ within the meaning of that expression in s 789FD(1) of the FW Act.

[22] Further, I am not persuaded that any of the conduct of which the applicant complains created any risk to her health and safety. The applicant said that she believed her psychological and mental health was at risk from the online criticisms and from the conduct of the AASW, but she did not refer to any medical evidence, nor did she provide any details of the risk that the conduct had allegedly created. The mere fact that a person might be incensed, upset, offended, indignant, or even outraged with the views of others does not mean that those views are unreasonable, nor does it establish that there is a risk to a person’s psychological or mental health and safety. Further, it is not enough for an applicant simply to assert that their mental health is at risk. In the present case, there is no persuasive evidence that the online comments, the delay in receiving the third respondent’s complaint, or any other conduct of the AASW or the other respondents has posed a risk to the applicant’s health and safety. I find that the conduct of which the applicant complains in this case did not create such a risk, and that therefore, also for this reason, she was not subjected to bullying within the meaning of s 789FD(1).

[23] The applicant said that she considered that the online posts presented safety risks to other directors. But there is no evidence of any risk to the health and safety of other directors. Further, an anti-bullying application is fundamentally concerned with the workplace health and safety of the applicant, not of other people, particularly persons who have not been identified.

[24] Finally, even if the applicant had been subjected to bullying, the Commission cannot issue an anti-bullying order under s 789FF unless it is satisfied that there is a risk that the worker will continue to be bullied at work. Because the applicant has not been bullied to date, she cannot logically continue to be bullied. More generally however I am not satisfied that there is a risk that the applicant will be bullied in the future. The AASW has archived the election Facebook webpage. The elections are over. The AASW is not responsible for the website of the ISWA. Both of the individual respondents want nothing to do with the applicant. The applicant said that there was a risk of ongoing harm because the complaint against her remained under investigation by the AASW, and the investigation may not be conducted fairly. The applicant said that, for example, she might not be able to obtain access to all of the information that is relevant to the complaint against her. But this is simply speculation. The investigation of the complaint is an important and reasonable undertaking. Despite the AASW’s delay in relaying the complaint to the applicant, the investigation has not entailed bullying to date. There is no basis to conclude that there is any risk of repeated unreasonable behaviour on the part of the AASW, or that the applicant’s health and safety will be put at risk. The possibility of future bullying is at best remote and hypothetical. The purpose of an anti-bullying application is to protect a worker’s health and safety. If no protection is needed, no order can be made.

[25] In conclusion, the applicant was not bullied at work and I am not satisfied that there is a risk that the applicant will be bullied at work in the future. The application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Appearances:

E.E. for herself

T. Lawrence for the AASW

A.W. for the second and third respondents

Details of the proceeding:

2022

Melbourne

14 November