Industry update: Caretaker bullying by bodies corporate

8 August 2018

Back in 2015, Mahoneys acted for the first caretaker recognised by the Fair Work Commission as a ‘worker’ for the purposes of a workplace bullying action and we continue to lead the way in this area.

Since then, we have noticed an increasing trend of bodies corporate of engaging in bullying as a tactic to harass, distract or undermine the performance of a caretaker. This is usually combined with a concerted effort to terminate the management rights.

However, in recent times, a number of practitioners in the industry have (incorrectly) been promoting workplace bullying actions as a ‘one-size-fits-all’ solution to all manner of conflicts with committees.

It’s important to understand that while these types of applications are appropriate in certain circumstances, they have their limitations.

What is a ‘worker’?

While the common misconception is that bullying can only occur between employees who work for the same business, this is not a legal requirement. A caretaker employed by a caretaking business can be bullied by a body corporate committee member.

The Fair Work Act 2009 (Cth) provides protections against bullying for:

  • a worker;
  • who is at work in a “constitutionally covered business”.

A ‘worker’ captures more than just an employee. They include contractors, subcontractors, outworkers, apprentices, trainees, students on work experience and volunteers. A caretaker is a worker if they are employed by a caretaking business. A caretaker who operates their own caretaking business will qualify as a worker if they are undertaking work for that business. That is easier to prove if they are paying themselves a wage as an expense of their caretaking business.

The worker must also be at work in a “constitutionally covered business”. How the caretaker’s business is structured is relevant.[1] Most caretaking businesses are structured as companies and will fulfil that definition.

However, if the caretaking business is not a corporation, the caretaker will not have any anti-bullying protection. In those circumstances, a caretaker might consider other avenues, such as making a complaint to Workplace Health and Safety Queensland.

What is ‘bullying’?

Bullying occurs when an individual (or group of individuals) repeatedly behaves unreasonably towards a worker (or group of workers) at work in a way that creates a risk to their health and safety.

The Fair Work Commission has found that the following categories of behaviours 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.[2]

A caretaker was recently successful in arguing that they were bullied by a committee member who sent them emails about non-urgent matters at unreasonable times (after 5pm on weekdays and on weekends). The emails contained “sarcastic and derogatory language”[3] and were sent to all other members of the committee, which had a compounding effect.

That sort of conduct will, unfortunately, sound familiar to many caretakers.

The risk of bullying to health and safety

The bullying of a caretaker may have significant consequences for their health and safety, including anxiety, sleeplessness and fatigue. These may in turn impact upon their performance of their obligations under the agreements, which can feed into further disputes with a body corporate.

The purpose of the bullying protections are to prevent risks, not actual harm. That means it is enough that the behaviour of the committee could cause harm to the caretaker’s health and safety, regardless of whether it can be proven that it does.

The ‘reasonable management action’ defence

The most common defence raised by the members of a body corporate committee is that they were engaged in reasonable management action carried out in a reasonable manner.

The members of the committee for a body corporate often believe that they are engaging in reasonable management action by:

  • communicating with a caretaker;
  • commenting upon a caretaker’s activities;
  • providing feedback to a caretaker;
  • issuing directions to a caretaker; or
  • reviewing the performance of a caretaker.

However, the above do not qualify as “reasonable management action” simply because they can be described as “management” activity. They must be reasonable in themselves and when considered in the context of:

  • the caretaker’s obligations under their agreements;
  • the caretaker’s relationship with the body corporate as an independent contractor where it is for the caretaker to decide how they fulfil their obligations (unlike an employee, who is subject to the comprehensive control of the employer);
  • the worker’s role as a representative of the caretaking company.

Even if a committee can demonstrate that it is engaging in reasonable management action, it must be carried out in a reasonable way.

What the Fair Work Commission can do

A caretaker may make an application to the Fair Work Commission for an order to stop bullying.

There is no specific form that an order must take. The Fair Work Commission may require that:

  • the members of the committee involved in the bullying stop their conduct;
  • the body corporate adopts an anti-bullying policy; and
  • the body corporate provides anti-bullying training to the committee.

It is important to remember that the Fair Work Commission cannot make orders that:

  • the committee change its caretaker liaison representative;
  • require the members of the committee to make a payment to the caretaker;
  • remove the members of the committee from their positions (or prevent them from being elected to such positions);
  • the body corporate or the committee pay the caretaker compensation;
  • the terms of a caretaking services contractor or letting agreement be amended in any way.

If a caretaker is successful in the Fair Work Commission, it is very unlikely to obtain an order that the members of the committee pay for its legal costs as it is a “no costs jurisdiction”. That means that a caretaker who wishes to engage a lawyer to make an application for an order to stop bullying must be prepared to bear their own costs of that application.

We have acted for caretakers in innumerable disputes with body corporate committees. In our experience, workplace bullying is usually only one ‘piece of the puzzle’ and needs to be considered as part of a global resolution.

[1] Manderson v Xanadu [2015] FWC 8231, [58].

[2] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774, [99].

[3] A v C [2018] FWC 4147.