Bullying on the Board and the Fair Work Commission

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The Fair Work Commission (FWC) has found that a director engaged in activities related to Board meetings and fulfilling the role of a director can be the subject of bullying under the Fair Work Act (FWA).

The particular circumstances of this case involved a Mr Adamson, who was at the time Chairperson of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY Inc) applied to the Fair Work Commission for a stop bullying order. His application was based on various allegations about the conduct of the General Manager and Deputy Chairperson of APY Inc. The alleged conduct included:

  1. Refusing to deal with the Chairperson and disrespecting his wishes;
  2. Interfering with the Chairperson’s conduct of meetings;
  3. Orchestrating events to prevent a quorum at Board meetings; and
  4. Preventing the Chairperson from accessing Board minutes.

There were extensive attempts made at reaching a conciliated resolution to the matter but all were unsuccessful. Prior to the case making it to a hearing, a board election was held and Mr Adamson was not re-elected.

Significantly in this case, for the provisions of the FWA to apply, the alleged bullying must take place while the worker is at work. There are no physical restrictions on what constitutes the work place so that the bullying can occur any time that the worker is performing work; regardless of location or time of day.

The FWC found that when the Chairperson was attending & conducting Board meetings and otherwise performing the role of the Chairperson, her was “at work”. In addition, it did not matter that the Mr Adamson was elected to his position and not engaged by APY Inc in the usual sense of an employment contract.

The finding that Mr Adamson was “at work’ when the alleged bully occurred is significant for NFP Boards as it means that a director or officer of an NFP entity will be a worker if they are:

  1. Remunerated for the work as a director or officer; or
  2. A volunteer director or officer.

The only exception is directors or officers who perform their role within an organisation that has no employees. That is, it functions entirely through volunteers.

It does not matter that the organisation conducts its business on a not for profit basis.

However, even where there is a finding of bullying at work, the FWC cannot order reinstatement, payment of compensation or a pecuniary amount. “The power of the Commission to grant an order is limited to preventing the applicant worker from being (further) bullied at work, and the focus is on enabling normal working relationships to resume in a mutually safe and productive manner.” [1]

As a result, because Mr Adamson was no longer on the Board at the time of the FWC hearing, no orders were made.

What does this mean?

Boards and management committees of NFP organisations are made up of people and there will inevitably be friction or disagreement between individual members at some time. However, if the behaviour of an individual director or group of directors goes beyond normal discourse between people with differing opinions, it may be possible for an aggrieved director to make an application to the FWC. Regardless of the outcome, such an application is likely to harm the reputation of the organisation and result in taking valuable time and resources away from community or charitable purposes.

This case is a reminder of the importance of strong governance practices and the documents that underpin those – the constitution, governance policies and protocols. If you would like assistance with strengthening governance to minimise the risks posed by this type of conduct, please contact us.

[1] Para 24 of the judgement

Joanne O'Brien
An expert with years of experience in, and passion for, advising the not for profit sector in all aspects of their operations from creation, management, mergers and governance through to risk and compliance and beyond, particularly in the aged care sector.