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:
- 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;
- by sending emails with an unreasonable (very high) frequency; and
- 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.