In Frost v Ambulance Victoria [2025] FWCFB 94, the Full Bench overturned a decision that equated bullying conduct and serious misconduct, highlighting the need for a proper assessment of the seriousness of the specific conduct within its context, including the governing enterprise agreement.
Summary of Facts
Mr Mark Frost, an employee of Ambulance Victoria (AV), was based at the Bright branch in northern Victoria.
In August 2021, AV initiated an investigation into allegations of misconduct against Mr Frost, appointing an external investigator, the Honourable Brian Lacy AO. Mr Frost provided written responses and participated in an interview during the investigation.
Mr Lacy’s report found, among other things, that Mr Frost was generally rude, did not respect women, frequently ignored a colleague’s greetings, and failed to create a respectful working environment. The report concluded this behaviour was unreasonable and created a risk to health and safety, finding it to be bullying behaviour as defined.
In July 2022, AV informed Mr Frost that three allegations were substantiated, two were substantiated in part, and one was unsubstantiated. Based on these findings, AV proposed disciplinary action, including a first and final warning, restorative practices (education and development), and a transfer to the Dandenong branch in southeast Melbourne.
Mr Frost did not challenge Mr Lacy’s findings of bullying. However, he disputed that his conduct amounted to serious misconduct and argued that the proposed transfer was therefore not available to AV under the Ambulance Victoria Enterprise Agreement 2020 (the Agreement). The transfer would require him to relocate or travel an excessive 350km to work, making it impossible to continue living in Bright.
Findings by the Commissioner
The dispute was referred to the FWC for arbitration under the dispute resolution procedure of the Agreement. Commissioner Connolly was asked to determine whether Mr Frost’s conduct was serious misconduct related to bullying or harassment and whether AV acted unreasonably or unjustly in imposing the transfer.
On the question of whether the conduct amounted to serious misconduct, the Commissioner accepted AV’s position that serious misconduct is judged objectively and does not necessarily require wilful behaviour. The Commissioner stated that “to suggest that bullying, objectively viewed, does not amount to serious misconduct is implausible” and found that AV was entitled to consider that Mr Frost had engaged in serious misconduct and subsequently impose a transfer.
The Commissioner concluded that Mr Frost’s conduct amounted to bullying as defined and that AV had not acted unreasonably or unjustly in imposing the transfer, as Dandenong was the only available location that met AV’s criteria at the time.
Ultimately, the Commissioner dismissed Mr Frost’s application.
Findings of the Full Court of the Fair Work Commission
Mr Frost appealed Commissioner Connolly’s decision to the FWC Full Bench.
The Full Bench found that the Commissioner made an error of law by equating bullying conduct with serious misconduct. The Full Bench found the Commissioner’s statements, particularly the suggestion that bullying is not serious misconduct was “implausible“, demonstrated that he had proceeded on the basis that a finding of bullying must mean the relevant conduct amounts to serious misconduct.
The Full Bench clarified that bullying under the Fair Work Act 2009 (FW Act) and serious misconduct are “two entirely distinct concepts“. Under the FW Act, bullying involves repeated unreasonable behaviour creating a risk to health and safety. Serious misconduct is defined differently under the Agreement (by reference to AV policy, similar to Fair Work Regulations) or at common law.
Importantly, the Full Bench considered that the conduct capable of falling within the definition of bullying under the FW Act exists on a spectrum of seriousness. Bullying behaviour at the lower end of the spectrum, such as where a person has acted unreasonably, but to a marginal degree, and the risk of safety is peculiar to the personal circumstances of the complainant, may constitute bullying but “would come nowhere near amounting to misconduct, let alone serious misconduct“. Therefore, a finding of bullying alone does not necessarily mean the conduct constitutes serious misconduct.
The Full Bench also upheld the second ground of appeal, finding the Commissioner erred in stating that Mr Lacy’s report concluded Mr Frost’s behaviour amounted to serious misconduct. Mr Lacy’s report found bullying, not serious misconduct
Outcome
Accordingly, the Full Bench concluded that a proper assessment of whether Mr Frost’s conduct constituted serious misconduct had not been made.
In allowing the appeal, the Full Bench quashed Commissioner Connolly’s initial decision. The matter was remitted back to him for redetermination to assess specifically whether Mr Frost’s conduct constitutes serious misconduct.
Implications
This decision reinforces that bullying and serious misconduct are distinct concepts and should not be automatically equated when applying disciplinary action, and in particular where enterprise agreements define or reference these terms.
Employers must conduct a proper assessment of the seriousness of the conduct, rather than assuming a finding of bullying will automatically meet the threshold for disciplinary measures requiring a finding of serious misconduct, such as a transfer or dismissal.
This case serves as a reminder for employers to carefully consider the specific definitions and requirements in their enterprise agreements and policies and all of the circumstances of the case when responding to findings of bullying or other misconduct.
This article was written by Victoria Stamper, Principal Lawyer and Practice Leader – Employment, Workplace Relations & Safety and Tom Manolas, Law Graduate. Please contact us if you have any questions regarding this article or other employment matters.
