Reasonable belief of bullying or sexual harassment at work

See Fair Work Act s.789FC(1)

For a worker to be able to apply to the Commission for orders to stop bullying or sexual harassment (or both), the worker must reasonably believe that they have been bullied and/or sexually harassed at work.

The expression ‘reasonable belief’ and similar expressions are used in a wide variety of contexts by the statutory and common law. It is clear from cases decided in those differing contexts that not only must the requisite belief actually and genuinely be held by the relevant person[103], but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief. It will not be a reasonable belief if it is irrational or absurd.[104]

Application for orders to stop bullying – insufficient evidence to support reasonable belief of bullying – no future prospect of bullying identified - Application dismissed

Darryl Vine v Central Bayside Community Health Services; George Robinson; Sharon Buchanan; Jane Fisicaro [2020] FWC 5910 (Yilmaz C, 5 November 2020)

Facts

The applicant made a range of allegations of bullying conduct against his employer and the 3 named individuals described as ‘victimising, humiliating, intimidating and threatening’. The applicant sought a stop bullying order and an order to suspend the named persons, a written apology and assurances from the CEO that he would not suffer any further bullying.

The application was made after the employer had raised a number of concerns about Mr Vine’s conduct including some inappropriate posts on social media.

Outcome

The application was dismissed on the grounds that there no credible evidence to reach a finding that the applicant was bullied at work.  The Commission found the disciplinary actions taken by the respondent were reasonable management action carried out in a reasonable manner. Based on the submissions filed, the Commission also found that the applicant was unlikely to return to the workplace meaning that even if there was bullying, an order would be of no practical effect. As a result, an order to stop bullying could not be made.

Relevance

The Commission assessed all of the evidence and was not satisfied that there was any evidence of bullying. Whilst the applicant believed he had been bullied, the conduct must not only be perceived as bullying but that belief must be reasonable in the sense that it is able to be supported or justified on an objective basis.

Application for orders to stop bullying – not a worker or at work – no reasonable belief of bullying at work - Application dismissed

Mr K [2021] FWC 5943 (McKinnon C, 17 September 2021)

Facts

The applicant made several applications to the Commission including an application under s.789FC of the Fair Work Act for orders to stop bullying at work in the Commission.

The applicant was a former employee of a large employer in South Australia. He had never carried out any work or engaged in any other authorised or permitted work-related activity for the Commission.

Outcome

The bullying application was dismissed on grounds including that Mr K could not reasonably believe that he had been bullied at work in the Commission because Mr K was not a ‘worker’ or ‘at work’ in the Commission. Accordingly, Mr K was not entitled to apply under s.789FC(1) of the Fair Work Act for orders to stop bullying at work in the Commission.

Relevance

The Commission found that the applicant could not have held the requisite ‘reasonable belief’ that he had been bullied at work in the Commission, as he was not a worker of the Commission.