Bullies in the Boardroom: Directors as “workers” under anti-bullying laws

Two recent Fair Work Commission (FWC) decisions, Trevor Yawirki Adamson [2017] FWC 1976 and Ari Kypuros [2017] PR593414 (1 June 2017), have found that company directors are “workers” for the purposes of workplace bullying and harassment laws. This means workplace bullying and harassment protections now apply to company directors at board meetings. 

What is workplace bullying?

Section 789FD of the Fair Work Act says a worker is bullied at work when an individual repeatedly behaves unreasonably towards the worker in a manner which creates a risk to their health and safety. 

Four key elements. 

1. The behaviour must be repeated, which means that conduct of a comparable kind must have occurred at least twice. 
   
2. The behaviour must be objectively unreasonable in the circumstances of each case – what constitutes unreasonable   behaviour in a board meeting might not be unreasonable on the shop floor. 
   
3. The behaviour must risk the health and safety of the worker, which has been taken to include a risk of psychiatric injury. 
4. “Reasonable management action carried out in a reasonable manner” is specifically excluded. This exception may apply to many of the board’s internal functions and operations. 

What is bullying in the boardroom? 

In Trevor Yawirki Adamson, the alleged behaviour included: refusing to deal with the director and disrespecting his wishes as chairman, interfering with his functions as the chairman, arranging events to prevent quorums at meetings, withholding access to the minutes of the board, and defaming the chairman. Other examples of unreasonable behaviour could include physical violence, use of abusive or offensive language, refusal to give a director access to essential documents, and otherwise “victimising, humiliating, threatening or intimidating” a director. 

What should boards do?

Commissioner Wilson in Ari Kypuros ordered that the board undertake workplace bullying training and design policies and procedures to avoid workplace bullying in the future. Boards should formally develop workplace bullying policies that are directly applicable to the board. Additionally, all directors should undergo periodic training to ensure they are familiar with their obligations under the workplace bullying regulations. 

If workplace bullying does occur in the boardroom, the FWC’s conciliation functions could even become and effective, quick and confidential mechanism to address the issues before they become a significant risk to the board’s operations. 

Whatever you opinions on the recent FWC decisions, they serve as a timely reminder that even company directors must comply with Australian employment law regulations. 

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Contact the author.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Robert Allen for his help in preparing this article.

E: [email protected]
W: www.ballawyers.com.au