Workplace Bullying by a Body Corporate

Section 789FA of the Fair Work Act 2009 (the FWA) enables a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying.  For the purposes of the FWA, reasonable management action taken in a reasonable way will not constitute workplace bullying.

A body corporate rarely directly employs workers.  Usually, an onsite care-taking service contractor is engaged (typically a company) to perform on-site duties such as grounds maintenance and the like, those duties normally being discharged by the company’s directors or employees engaged by the company.

In what circumstances can a body corporate find itself embroiled in a Body Corporate Dispute involving workplace bullying?

If a body corporate doesn’t have employees, can it engage in workplace bullying?

At first glance, the apparent answer would seem no.

However, the recent FWC decision in Application by Ms A [2018] FWC 4147 held the FWA’s bullying provisions extended to a director of a caretaking service contractor who was found to have been bullied at work because of the unreasonable management action taken by the body corporate committee’s chairman.

Unreasonable Management Action

The Applicant (Ms A) was a director of the onsite care-taking service contractor – she was not directly employed by the body corporate.

Notwithstanding she was not employed by the body corporate, Ms A complained the body corporate through its chairman engaged in workplace bullying by him sending her excessive emails containing inappropriate content.

The FWC after considering the evidence was satisfied that Ms A’s performance as a manager or a director of the on-site caretaking service contractor left much to be desired.  It found many of the issues in the chairman’s emails raised legitimate and reasonable concerns about the performance of the onsite care-taking service contractor.

However, while the issues raised may have been reasonable, the manner in which they were raised and their frequency was not.

The chairman engaged in a practice of sending emails to Ms A at times significantly outside of the hours during which the onsite care-taking service contractor was required to be contactable.  While the onsite care-taking service contractor was required to be contactable at any time in the case of an emergency, none of the issues raised in the chairman’s emails were of an emergent nature.

The chairman also used sarcastic and derogatory language in the emails and published those comments to other body corporate committee members.

In particular, the chairman sent emails referring to Ms A as a liar, made comments about her credibility, ability to perform the work required under the engagement and her command of English.

That conduct was held to be unreasonable and repeated and created a risk to the health and safety of Ms A affecting her personal well-being.

The FWC noted there were appropriate statutory and contractual mechanisms by which such Body Corporate Disputes with the onsite care-taking service contractor could be resolved and as the FWC was satisfied the chairman’s behaviour would continue, a stop bullying order was made in favour of Ms A.

If Ms A wasn’t employed by the body corporate, why was a stop bullying order made?

The FWC observed Ms A, when carrying out the work associated with the onsite care-taking service contractor’s role at the scheme, was at work in a constitutionally-covered business for the purposes of the FWA.

Section 789FC of the FWA holds that a worker is an individual who performs work in any capacity.

Under section 789FD of the FWA, a worker is bullied at work if the worker is at work in a constitutionally-covered business and an individual repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.

On this basis, the FWC held Ms A was a worker for the bullying provisions of the FWA.

She may not have been employed by the body corporate, but when she was at work at the scheme, she was subjected to bullying by an individual, being the chairman.

Takeaways

Section 94 of the Body Corporate and Community Management Act 1997 imposes upon a body corporate a statutory obligation to act reasonably.  The application of that section has been held in numerous case law decisions to apply to a body corporate’s interactions with onsite care-taking service contractors.  This decision opens a new front of the general obligation of reasonableness a body corporate must exercise when dealing with a Body Corporate Dispute involving an onsite care-taking service contractor.

Links and further references

Cases

Application by Ms A [2018] FWC 4147

Legislation

Fair Work Act 2009
Body Corporate and Community Management Act 1997

Further information about Body Corporate Disputes

If you need assistance in relation to any Body Corporate Dispute, contact Dundas Lawyers Gold Coast for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.