QLD: It’s a fine line between legitimate feedback and bullying

Three things to know about bulling in strata:

1. Fair Work provisions are not formally replicated in strata law
2. However, protections do apply to companies – and that includes Management Rights owners who are one
3. Costs cannot be awarded; the primary goal is to stop the bullying

Watch our 3-minute summary:

Listen on Spotify:

If you go back 20 years and look around for use of the word bullying, you’d probably only find it in the context of the schoolyard.

Now it’s popping up everywhere – particularly in the workplace, where it is definitely applicable – and lots of other places where (in a legal sense at least) it isn’t.

And while a management rights business can often feel as much a lifestyle choice as a career or job, strata schemes are a workplace for those managers.

Workers’ rights

In a workplace, employees have rights under the Fair Work Act with respect to protection from bullying.

Under the Act, the definition of bullying is wide-ranging – everything from yelling, screaming and use of offensive language, to intimidation, nitpicking and overloading with work with insufficient time to complete.

Sound familiar?

While there is no formal equivalent bullying provision in Queensland strata law, there is a link with respect to management rights under Federal legislation.

Bullying in management rights

Bullying can apply to entities or people associated with entities that are constitutionally covered corporations – in other words, companies.

So, where the management rights for a building are owned by a company, the people involved with that company can access the Fair Work Commission in relation to protection from bullying.

Interestingly, the same laws apply to strata managers, who are usually companies.

A problem that we have observed is that if someone commences a proceeding for bullying there is no end game of an award of damages or legal costs; what you’re actually seeking when you take action is to stop the bullying.

The fact that there is no right to recover costs means people quite often look to do these things on their own and not engage lawyers.

Legal clarity

A recent decision provides some further clarity for how these bullying provisions apply in a management rights context.

This was a fairly typical case. The manager believed they were doing the job, but the committee didn’t believe they were doing the job.

Heard that before?

Rather than itemising all of the to and fro, our major takeaway from the case is: having conversations between a body corporate committee and a manager about performance of the tasks required under the management rights agreement does not necessarily constitute bullying.

It is up to the manager to do the job they are contracted to complete, and it’s in their interest to be seen to be doing it.

A body corporate is entitled to raise issues if they believe the job is not being done.

Reasonable management action, where each party is understanding the other’s position and raising concerns about performance, is appropriate.

In short, legitimate feedback is not bullying.

Non-standard hours

Another takeaway from this case is in relation to the timing of contact.

In a bullying situation in a normal office workplace environment, you can expect all of the conversations to happen in office hours between 8.30am and 5 o’clock in the afternoon.

If I was getting emails from my boss at 10 o’clock at night, then that is more than likely going to be inappropriate.

However, the situation is different in a management rights context where committee members are often volunteers. They are going to look at committee work after hours.

What this means for you

From a management rights perspective it’s important to be aware that a body corporate engaging about performance is not necessarily bullying, and you can expect for things to happen outside normal business hours.

It’s a fine line to navigate, and if there is doubt, specialist legal advice would be beneficial.

This post appears in Strata News #786.

Frank Higginson
Redchip Strata Law
E: FrankH@redchip.com.au
P: 07 3193 0500

This article has been republished with permission from the author and first appeared on the Redchip Strata Law website.