Bullying and Harassment in schemes

At the recent SCA Principals Night Off (April) that I attended we discussed the many changes and challenges since Covid 19, including bullying. In Jason Carlson’s articles and seminars about “Keyboards don’t have feelings” an issue that keeps arising is the bullying and harassment of managers by clients, or individuals within schemes.

Bullying and harassment in a scheme can have serious consequences for the affected individuals and the wider community. As we know schemes are wide and varied and can be residential, commercial, retail, industrial, or mixeduse communities. As management of these schemes is overseen by a committee, it is a difficult task to have a harmonious community all the time. Then adding in the overlay of a manager the issues get interesting……

Unfortunately, incidents of bullying and harassment are not uncommon in schemes across the Country (and probably the world). As lawyers, we see disputes constantly, and assume that managers see it more than anyone, especially the rise of the “keyboard warrior”.

These behaviours can take many forms, including verbal abuse, physical intimidation, exclusion, and cyberbullying. Bullying and harassment can occur between residents, between residents and the committee, or between different members of the committee and finally the manager who can get it from all sides.

The impact of bullying and harassment can be severe. Victims may experience feelings of fear, anxiety, and depression, which can impact their quality of life and mental health. Bullying can also damage relationships between neighbours and create a toxic living environment. Additionally, bullying and harassment can create legal issues, particularly if the behaviour constitutes discrimination or breaches scheme by-laws.

In all States and Territories, schemes are governed by legislation, which sets out the rights and responsibilities of residents and the committee. The legislation also outlines procedures for resolving disputes and addressing breaches of scheme by-laws/management statements. If a resident or owner believes they are being bullied or harassed, they can report the behaviour to the committee or the police if it is a criminal offense.

Naturally, to prevent bullying and harassment, it is important to promote a culture of respect and inclusion. The committee can play a vital role in this by developing clear policies and procedures for dealing with complaints, and ensuring that all residents understand their rights and responsibilities. Communication and transparency are also essential, as residents should be kept informed of any decisions or actions taken by the committee. The problem is that sometimes the committee may be the bully…..

Now, all this sounds fine, but what about practical implications?

There seems to be prevalence of schemes being treated as workplaces. This is irrespective of whether the scheme is the “employer” of various persons conducting work onsite or the scheme is a purely residential one. If the scheme employs people, clearly the Fair Work Act 2009 applies to the treatment of those workers – that is a discussion for another day.

Generally, schemes do not directly employ any workers, but instead, enter into a number of contractual relationships with other third-party businesses to provide services (like managing agent, building managers and concierges). In all of the above, each of your building managers, concierges, managing agents, and any other contractors engaged by the schemes will be deemed to be “workers” for the purposes of the Fair Work Act 2009 (Cth) – this is due to the Fair Work Act adopting the broad definition for “workers” contained in the Work Health and Safety Act 2011 (Cth).

This wide definition even covers volunteers and people running businesses from a lot or common property.

However, we may be saved!! Or are we…. In the decision [2021] FWC 6575, the Fair Work Commission found an owners corporation was not a “constitutionally covered business” as its principal activities were not of a financial or trading nature and as a result the legislation did not apply – phew…. So we are not covered…..

So, whilst this helps the schemes from not being the defendant in any claim, a worker can commence legal proceedings and obtain orders against individual owners

and/or occupiers in respect to their behaviour (if they were part of the committee, the scheme may be “roped in” in any case by office bearers, insurance in some cases or just being responsible for the legal bills for a defence). This is on the basis that the scheme (and in some instances lot property) is a workplace to the extent that the worker works on the common property.

So, if the committee does behave badly, workers can do something about it. Putting that into a “manager” context. If you are receiving the 100 emails a day from the lot owner (either on behalf of the committee or not) making accusations, claims and bullying, then there are some problems for the scheme, the person doing the bullying and the management company managing the scheme (if you don’t act quickly).

“Bullying at work” is defined broadly and involves repeated behaviour towards a worker or group of workers that creates a risk to health and safety. In relation to the concept of “risk to health and safety”, causing unreasonably stress or affecting the mental health of a worker (including losing sleep) can constitute bullying for the purposes of the Fair Work Act 2009 (Cth).

These are some examples that have resulted in the Fair Work Commission making orders against an individual:

• An individual repeatedly making belittling or disparaging comments about another lot owner (who owned and operated a retail lot) in emails and at meetings. This included talking over the other lot owner at meetings, accused her of lying or being dishonest, and copying other people into rude or abusive emails.

• An individual acting in an intimidatory way whilst on the common property, for example letting doors close in the face of an individual as she approached, staring at the individual, and mumbling under his breath.

• Deliberately and without justification withholding the payment of invoices to cause financial and/or mental distress.

• Sending multiple emails to a contractor about their work performance, the frequency, tone, timing, and content of which was unreasonable.

What Orders Can be Made?

The Fair Work Commission has a very broad power to make orders designed to stop the bullying behaviour.

• Restricting or stopping altogether any communication or interaction between the persons involved.

• A requirement that the persons involved agree to a communication protocol/process to ensure communications are conducted in a reasonable and respectful manner at all times.

• Attendance at anti-bullying training.

If a stop bullying order of the Fair Work Commission is breached, a person can be subject to a monetary penalty of up to 60 penalty units (up to $16,500.00).

What should the schemes do?

The main thing committees and managers need to do is make everyone aware of the implications of bullying and harassment, including that of what constitutes, as it is wider than what most people think. Schemes should have codes of conduct for meetings, emails, written communications, and guidelines for owners to follow. These may even extend to by-laws/management rules. Attending meetings with the SCA Pledge is a great place to start, it opens the conversation around respectful communication and sets the standard for a set of behaviours to be adhered by.

Managers need to be ever vigilant in ensuring that committees and owners/occupiers do not bully or harass their staff and have within their agreement policies that schemes must follow in dealing with their staff.

In conclusion, bullying and harassment in schemes is a serious issue that requires attention by the industry as a whole. By promoting a culture of respect and inclusion, enforcing scheme by-laws, and addressing complaints promptly and effectively, we can create a safe and harmonious living environment for everyone in the community.