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Bagstering the bully: Fair Work Commission unable to hear applications in Council bullying saga

Overview

A case involving allegations of bad behaviour by a South Australian Councillor has highlighted the difficulties for Councils seeking assistance to address bullying and health and safety concerns. In this case, the Fair Work Commission (Commission) held it did not have jurisdiction to hear cross-bullying claims from the Acting CEO and an elected Councillor of Burnside City Council in Adelaide. The analysis was specific to that Council however, it may be the Commission would reach a different decision in considering a Victorian Council.

The parties had made stop-bullying applications to the Commission as the last steps in a saga that has plagued the Council for many months. At the centre of the controversy is Councillor Lancelot Bagster, who is alleged to have bullied various Council employees and members of the public over the course of many months. A week after the Acting CEO filed an application for a stop-bullying order against him, Councillor Bagster filed a counter application for a stop-bullying order, alleging he was being bullied by three other Council members, including the CEO, Mayor and Acting CEO (who filed the original application).

Conduct

The details of Councillor Bagster’s conduct are outlined in an explosive confidential investigation report, which the Council has recently published. The report is thoroughly damming of Councillor Bagster and concludes that he ‘willfully engages in deceit, bullying, harassing, threatening, intimidating and potentially stalking behaviour’ towards various Council workers, pointing to a selection of text messages and emails that he sent.

The investigation report contained multiple examples of communication from Councillor Bagster. This included an email from Councillor Bagster to the Mayor in which he likened Council workers to Nazi German leaders. Councillor Bagster also repeatedly insisted on referring to the CEO, Paul Deb as ‘Paul McDeb’, despite advice from the independent investigator to stop amending the CEO’s name and to engage in professional behaviour.

There were also countless examples of messages from Councillor Bagster that were found to involve him mocking and taunting other Council workers. This included a text message from Councillor Bagster to the CEO in the early hours of the morning, in which he appeared to sincerely inquire about the CEO’s wellbeing and offer his support to him, before ending the message with a string of emojis clearly intended to mock the CEO (including one crying with laughter).

The report concludes that Councillor Bagster’s barrage of verbal and written attacks on various Council workers were aggressive, personal and sent at all hours of the day and night, including some while recipients were on leave. The independent investigation also concluded that Councillor Bagster’s conduct towards the Council’s CEO constituted stalking.

Shortly before the Commission’s compulsory conference was scheduled to occur, the Magistrates’ Court issued an Interim Intervention Order against Councillor Bagster, protecting (among others) the Acting CEO.

Jurisdiction

Before the Commission will hear an application for a stop-bullying order, three jurisdictional criteria must be met:

  1. the applicant must be a ‘worker’
  2. the alleged bullying must occur ‘at work’ in a ‘constitutionally-covered business’
  3. the alleged bully must be an individual or a group of individuals.

Critically, the alleged bully does not need to be a fellow employee, or employer, of the applicant, so it is possible for an elected Councillor to be the subject of such an application. Similarly, the term ‘worker’ in anti-bullying provisions is broad and based on the definition of ‘worker’ used in the model Work Health and Safety Act 2011.

Deputy President Anderson therefore had to determine whether the Commission had jurisdiction to hear the applications and had to consider whether the Council was a ‘constitutionally-covered business’ because it was, relevant to this case, a ‘trading corporation’.

He found that the Council only earns 7.1% of its revenue from activities that are ‘trading activities’ and that, as a local government body, the Council’s activities ‘primarily concern community services and local representation rather than trade in goods or services’. In this sense, the Council’s ‘trading activities’ occur in a non-commercial context and are peripheral to, rather than a substantial part of, the Council’s operations.

The vast majority (82.6%) of the Council’s revenue was generated from rates, which does not constitute revenue from ‘trading activities’. In contrast, just 3.8% of the Council’s revenue came from facilities hire (such as halls and swimming pools), leases and transport, the sort of ‘trading activities’ that would more typically be associated with a Victorian Council.

Because the Commission held that the Council is not a ‘constitutionally-covered business’, it could not deal with the applications.

The Commission did not need to, and therefore did not, address the question of whether or not a Councillor is a ‘worker’ who can seek a stop-bullying order.

How do Councils know if they’re covered?

Although in this case the Council’s ‘trading activities’ were not conducted to a degree sufficient for it to be characterised as a ‘trading corporation’, this will not necessarily be the case for all Councils.

For some Councils, including many in Victoria, commercial activities make up a greater proportion of their revenue than is the case for Burnside City Council. Such Councils are more likely to be correctly characterised as ‘trading corporations’. This case, and other cases on point, tell us that ultimately whether a Council is captured by the Commission’s anti-bullying jurisdiction will depend on the individual circumstances of the particular Council, including the extent to which it generates revenue from ‘trading activities’, and the quantum of that revenue.

Lessons for Councils

Irrespective of whether a Council thinks that their ‘trading activities’ are such that they are likely to be covered by the anti-bullying jurisdiction, or whether anyone has made an allegation of bullying, Councils must always seek to eliminate or minimise risks by complying with their health and safety obligations.

Some examples of ways to meet these obligations include:

  • running regular training on acceptable behaviour and respectful relationships
  • seeking to facilitate or mediate between parties where there is a dispute
  • having up to date policies that everyone is familiar with
  • putting in place control measures such as limiting email contact where required
  • creating a culture of safety awareness by encouraging active reporting and zero tolerance.

It remains to be seen if a Victorian Councillor’s behaviour will be considered in this jurisdiction. But a Victorian Council that fails to implement steps like those outlined above may well find itself before the Commission. The Commission may make a stop-bullying order and deem it mandatory for a Council to adopt such steps.

Author
Claire Francis | Lawyer
T +61 3 9258 3568
E claire.francis@maddocks.com.au

Overview

A case involving allegations of bad behaviour by a South Australian Councillor has highlighted the difficulties for Councils seeking assistance to address bullying and health and safety concerns. In this case, the Fair Work Commission (Commission) held it did not have jurisdiction to hear cross-bullying claims from the Acting CEO and an elected Councillor of Burnside City Council in Adelaide. The analysis was specific to that Council however, it may be the Commission would reach a different decision in considering a Victorian Council.

The parties had made stop-bullying applications to the Commission as the last steps in a saga that has plagued the Council for many months. At the centre of the controversy is Councillor Lancelot Bagster, who is alleged to have bullied various Council employees and members of the public over the course of many months. A week after the Acting CEO filed an application for a stop-bullying order against him, Councillor Bagster filed a counter application for a stop-bullying order, alleging he was being bullied by three other Council members, including the CEO, Mayor and Acting CEO (who filed the original application).

Conduct

The details of Councillor Bagster’s conduct are outlined in an explosive confidential investigation report, which the Council has recently published. The report is thoroughly damming of Councillor Bagster and concludes that he ‘willfully engages in deceit, bullying, harassing, threatening, intimidating and potentially stalking behaviour’ towards various Council workers, pointing to a selection of text messages and emails that he sent.

The investigation report contained multiple examples of communication from Councillor Bagster. This included an email from Councillor Bagster to the Mayor in which he likened Council workers to Nazi German leaders. Councillor Bagster also repeatedly insisted on referring to the CEO, Paul Deb as ‘Paul McDeb’, despite advice from the independent investigator to stop amending the CEO’s name and to engage in professional behaviour.

There were also countless examples of messages from Councillor Bagster that were found to involve him mocking and taunting other Council workers. This included a text message from Councillor Bagster to the CEO in the early hours of the morning, in which he appeared to sincerely inquire about the CEO’s wellbeing and offer his support to him, before ending the message with a string of emojis clearly intended to mock the CEO (including one crying with laughter).

The report concludes that Councillor Bagster’s barrage of verbal and written attacks on various Council workers were aggressive, personal and sent at all hours of the day and night, including some while recipients were on leave. The independent investigation also concluded that Councillor Bagster’s conduct towards the Council’s CEO constituted stalking.

Shortly before the Commission’s compulsory conference was scheduled to occur, the Magistrates’ Court issued an Interim Intervention Order against Councillor Bagster, protecting (among others) the Acting CEO.

Jurisdiction

Before the Commission will hear an application for a stop-bullying order, three jurisdictional criteria must be met:

  1. the applicant must be a ‘worker’
  2. the alleged bullying must occur ‘at work’ in a ‘constitutionally-covered business’
  3. the alleged bully must be an individual or a group of individuals.

Critically, the alleged bully does not need to be a fellow employee, or employer, of the applicant, so it is possible for an elected Councillor to be the subject of such an application. Similarly, the term ‘worker’ in anti-bullying provisions is broad and based on the definition of ‘worker’ used in the model Work Health and Safety Act 2011.

Deputy President Anderson therefore had to determine whether the Commission had jurisdiction to hear the applications and had to consider whether the Council was a ‘constitutionally-covered business’ because it was, relevant to this case, a ‘trading corporation’.

He found that the Council only earns 7.1% of its revenue from activities that are ‘trading activities’ and that, as a local government body, the Council’s activities ‘primarily concern community services and local representation rather than trade in goods or services’. In this sense, the Council’s ‘trading activities’ occur in a non-commercial context and are peripheral to, rather than a substantial part of, the Council’s operations.

The vast majority (82.6%) of the Council’s revenue was generated from rates, which does not constitute revenue from ‘trading activities’. In contrast, just 3.8% of the Council’s revenue came from facilities hire (such as halls and swimming pools), leases and transport, the sort of ‘trading activities’ that would more typically be associated with a Victorian Council.

Because the Commission held that the Council is not a ‘constitutionally-covered business’, it could not deal with the applications.

The Commission did not need to, and therefore did not, address the question of whether or not a Councillor is a ‘worker’ who can seek a stop-bullying order.

How do Councils know if they’re covered?

Although in this case the Council’s ‘trading activities’ were not conducted to a degree sufficient for it to be characterised as a ‘trading corporation’, this will not necessarily be the case for all Councils.

For some Councils, including many in Victoria, commercial activities make up a greater proportion of their revenue than is the case for Burnside City Council. Such Councils are more likely to be correctly characterised as ‘trading corporations’. This case, and other cases on point, tell us that ultimately whether a Council is captured by the Commission’s anti-bullying jurisdiction will depend on the individual circumstances of the particular Council, including the extent to which it generates revenue from ‘trading activities’, and the quantum of that revenue.

Lessons for Councils

Irrespective of whether a Council thinks that their ‘trading activities’ are such that they are likely to be covered by the anti-bullying jurisdiction, or whether anyone has made an allegation of bullying, Councils must always seek to eliminate or minimise risks by complying with their health and safety obligations.

Some examples of ways to meet these obligations include:

  • running regular training on acceptable behaviour and respectful relationships
  • seeking to facilitate or mediate between parties where there is a dispute
  • having up to date policies that everyone is familiar with
  • putting in place control measures such as limiting email contact where required
  • creating a culture of safety awareness by encouraging active reporting and zero tolerance.

It remains to be seen if a Victorian Councillor’s behaviour will be considered in this jurisdiction. But a Victorian Council that fails to implement steps like those outlined above may well find itself before the Commission. The Commission may make a stop-bullying order and deem it mandatory for a Council to adopt such steps.

Author
Claire Francis | Lawyer
T +61 3 9258 3568
E claire.francis@maddocks.com.au