What to do when body corporate interactions escalate into harassment and bullying?
There is currently no provision under the Body Corporate and Community Management Act to address harassment, bullying or abuse within a Body Corporate, yet it is something that individuals may deal with daily.
Strata Managers, lot owners and onsite managers can all be subject to abuse. In the instance of physical violence or threats, we would immediately refer lot owners to contact the police.
However, if the harassment is not physical, what then? What if the sheer volume of emails from an owner and their threatening tone causes distress to you or another lot owner?
What if this communication is affecting your health and quality of life? Addressing such issues through the correct channels and reporting to the relevant governing authorities can take months and leave you out of pocket.
All the while, the harassment continues (and often escalates).
While unfortunately there are minimal options available for addressing bully like behavior in a Body Corporate from a legislative perspective, we have collated some information that might assist you to develop an approach that is right for you and your scheme.
- Seek legal advice from a solicitor who specialises in body corporate disputes. Legislation determines that a Strata Manager is to remain impartial and therefore is unable to mediate. We can certainly provide guidance, recommendations of solicitors who assist with such disputes, and provide you with the necessary tools to achieve a positive outcome.
- Consider a standard Committee response for abusive emails. For example: "The Body Corporate for Remmington Manor acknowledges receipt of your correspondence. The Committee will review and file this correspondence. Please be advised that the Committee will not acknowledge or respond to correspondence of an abusive or harassing nature.”
- Review your by-laws. Does your Body Corporate have a nuisance by-law? How is nuisance defined? Ask your Strata manager for a copy of your Body Corporate by-laws.
- Submit a motion for general meeting consideration that will incorporate a new by-law that requires communications (email & verbal) be ‘reasonable’. There are many solicitors who will be able to assist in the wording of the new by-law. If adopted, the Committee will be able to quantify their determination of ‘nuisance’, by assessing the frequency of emails and volume of correspondence issued by a lot owner to the Strata Manager, Committee & /or other owners. If such by-law is contravened, an adjudication order may be sought to impose rules about how ongoing communications are managed. A well-known example is the Tank Tower adjudication order, where communication conditions were defined in the order for compliance. Failure to comply with an adjudication order may do result in monetary penalties.
- If the person causing a nuisance is on the Committee, consider calling an Extraordinary General Meeting and submitting a motion to remove them from office. Who can call a meeting? A Committee member, if the majority of members are in favour, or 25% of lot owners may issue a signed request to the Committee. Bear in mind that the Committee & Strata Manager are still required to respond to a lot owner if they have legitimate & reasonable requests. Be aware, a Committee member may re-nominate themselves & be elected again at the next Annual General Meeting. (Unless one of the proposed changes to the Strata law is implemented, where a 2-year ban may be imposed on anyone who has previously been removed from the Committee).
- Bear in mind if lot owners form the habit of submitting adjudication applications each time they do not agree with decisions of the Committee and an adjudicator deems the application as vexatious, frivolous or without substance, the owner may be ordered to pay $2000 to the Body Corporate as compensation for the loss incurred in dealing with the application. While this may not be sufficient to cover legal fees incurred in responding to an application and additional service fees for the Strata Managers time in reviewing and distributing documents as directed by the Office of the Commissioner for Body Corporate, it is a step in the right direction and may benefit the Body Corporate by preventing further nuisance activity.
What other options are there for an individual?
- Directly confronting the person and informing them of the effect their behaviour is having on you may be a way of ensuring the situation comes to an end. Understandably, this approach might be difficult (or unsafe) and therefore it is best to have a support person to help you. Remember, respond only when necessary, refrain from replying to correspondences immediately; allow time to review, and cool down (if needed). As a Committee member if you are privy to harassing communication to another individual, speak up and show your support. Send the message that you will not tolerate this type of behaviour.
- If you are experiencing or witnessing any behaviour that involves violence, and this includes threats of physical violence, you should report this to the police. A Strata Manager holds no authority to remove a person from a body corporate. Lot owners will remain a member of a Body Corporate until they sell their unit or, they die. You can apply for an AVO (Apprehended Violence Order) when you are afraid that someone will hurt you, or your child or if someone is intimidating, harassing or stalking you or your child. Keep a written account of all instances and keep any emails of concern.
- You can submit an application for a workplace bullying order. (This relates more to an Onsite Manager/Caretaker or a Strata Manager). Until recently, stakeholders in the Body Corporate industries thought that there was little that could be done to combat bullying behavior between lot owners and Strata Managers or lot owners and Onsite Managers. There has been a perception that bullying claims can only apply to those that are employees in a traditional workplace. However, the Fair Work Commission (FWC) has now confirmed that it can hear bullying claims involving bodies corporate. Bullying behaviour may involve aggressive or intimidating conduct, belittling comments and attempts to damage one’s reputation and/or harassment of others. The current application fee is $70.60 for an “Application for Bullying Stop Order”. Contravention of a pecuniary penalty order attracts a fine of up to 60 penalty units for an individual ($12,600) or 5 x 60 penalty units for a Body Corporate ($63,000). As outlined above, it can be an expensive and time prohibitive road however the penalties can be significant if followed through to fruition.
- Further to the recommendation above, if the bullying mostly occurs online, you could ask the police about the penalties for cyber-bulling. There are laws which apply to serious online harassment and bullying, which can include offensive, menacing or harassing behaviour through the use of technology, e.g. hurtful emails and abusive text messages. Under the Criminal Code Act it is an offence to use the internet, social media or a telephone to menace, harass or cause offence. The maximum penalty for this offence is 3 years imprisonment or a fine of more than $30,000.
In summary, take appropriate action before it escalates, ensure the perpetrator is aware of the consequences of their behavior and if you witness bullying behavior in your body corporate, show your support and send the message that you will not tolerate this type of behavior.