The Fair Work Commission heard two applications for orders to stop bullying, jointly filed by the director and an employee of a caretaker company that manages a private gated estate.

The company owns the management rights to caretake and perform onsite management duties at a multi-residential private gated estate of about 93 homes.

The owners of the complex are represented by a body corporate committee (BCC). The caretakers sought orders against the treasurer of the BCC, who was also the acting chairman.

The caretakers allege that the treasurer and the BCC have engaged in unreasonable behaviour towards them that has caused a risk to their health and safety.

The treasurer denied all the allegations, claiming the actions taken were justified and reasonable, and denying the allegations of bullying. He said all the issues raised resulted from decisions made by the body corporate rather than himself.

The caretaker employee submitted that the BCC had withheld payment of its November management fee. After several emails from the caretaker company explaining their distress given the time of the year, the payment was eventually made on 9 January 2023.

The treasurer responded in a mocking manner saying he was sorry they were “living in misery”.

The caretakers submitted that this remark was unreasonable and contributed greatly to the distress they were experiencing from the lack of funds caused by the delay in payment of the management fee.

Furthermore, the BCC had ceased making payments for the reimbursement of fuel and mower blades and also made unreasonable logbook requests.

The caretaker also provided copies of emails that indicated the BCC had engaged in unreasonable conduct in breaching the employee’s privacy by taking photographs and tracking his whereabouts when he was carrying out his duties and going about his personal business as a resident of the complex.

Deputy President Theresa Dobson held that the caretakers had been bullied at work by the treasurer and, given his role as treasurer and acting chairman of the BCC, that flowed to the BCC itself.

“The [caretakers] believe that they have been bullied at work. The bullying conduct has been set out, but in summary whilst the majority of the issues raised were reasonable matters to be raised by the BCC, the manner in which they have been raised, including the frequency, tone, timing, content and approach detailed in that correspondence is not at all times reasonable and there are multiple incidents of substantiated unreasonable behaviour,” she said

Deputy President Dobson said the evidence had highlighted that the treasurer had been a driving factor in several of the substantiated allegations.

“It is my view that it is more likely than not that the treasurer will continue to engage in such conduct and it is my view that the BCC is unable or unwilling to keep the treasurer in check,” she said.

“I am satisfied that repeated unreasonable behaviour has created an ongoing risk to the health and safety of the [caretakers] given the substantiated unreasonable conduct, the evidence in respect of the distress caused to the [caretakers] as a result of this conduct.”

“In that respect, I am therefore satisfied that repeated unreasonable conduct has occurred and that there is an ongoing risk to the health and safety of the [caretakers] as defined by s789FF and therefore the commission’s jurisdiction is enlivened, and consequently it is appropriate to make orders.”

Read the judgment

[2023] FWC 364