The FWC provides an insight into the new bullying jurisdiction

Introduction

With the recent amendments to the Fair Work Act 2009 [click here to see our prior article], the Fair Work Commission (the FWC) will soon have jurisdiction to make various orders in relation to applications by workers who believe they have been bullied at work. While it remains to be seen how the amendments which are due to commence on 1 January 2014 will operate in practice, a recent decision of the FWC provides some insight as outlined below.

Background

Ms Harris had been employed by WorkPac Pty Ltd since November 2004, most recently as its Recruitment Co-ordinator Team Leader. She had received no prior warnings.

In November 2010, Ms Maye was engaged by Workpac until her resignation in December 2012. Ms Maye undertook an exit interview in which she made various allegations regarding Ms Harris' behaviour towards her at work over an extended period of time. 

In particular she stated that Ms Harris:

• was aggressive and belittling in her dealings with her;
• displayed a negative demeanour and lack of respect towards her;
• swore and screamed at her regularly;
• undertook embarrassing and humiliating behaviour towards her and other staff members;
• was dismissive of her;
• when Ms Maye asked a question, she spoke to her like she was an idiot and 'barked' answers back at her;
• undermined her constantly in front of others and treated her with disdain; and
• made complaints about Ms Maye with the purpose of getting her in trouble.

Seven specific incidents were cited with five of those incidents occurring 17 months prior to Ms Maye's resignation and during a period when Ms Harris' husband was terminally ill. The latest incident had occurred six months prior to Ms Maye's resignation when Ms Harris allegedly shouted at her "get out the f***ing file." 

Ms Maye had previously, prior to her resignation, raised complaints regarding Ms Harris with Workpac but there had been no response. There were no written records of these complaints, or what action was taken in response to the complaints tendered by Workpac in the proceedings. Nor were their contemporaneous notes maintained by Ms Maye during her employment with Workpac.

On 19 December 2012, Ms Harris was advised that she was required to attend a meeting the next day regarding  "allegations relating to your treatment of a fellow team member [Ms Maye]."

At 8.30am the next morning, Ms Harris received an email detailing further information regarding the allegations.

By 9.00am Ms Harris had provided a written response and at 11.30am met with Workpac where she denied the allegations raised against her. Workpac advised Ms Harris that it would consider her responses and she was required to attend a further meeting at 2.00pm that day.

At the further meeting, Ms Harris was terminated effective immediately for bullying and provided with 5 weeks pay in recognition of her length of service.

Ms Harris filed an application for unfair dismissal remedy.

Consideration

While Commissioner Cloghan was satisfied there may have been differences between Ms Maye and Ms Harris, he was not satisfied that the allegations and the conduct, which formed the basis of the dismissal, actually occurred.

It was noted that one of the only substantive documents before the FWC in defence to Ms Harris' unfair dismissal claim was a copy of Workpac's Harassment, Unlawful Discrimination & Workforce Bullying Policy. 

Commissioner Cloghan's view indicated that while policies are important, so is appropriate investigation and management of complaints, stating that:

"While the Policy is succinct, its value or success lies in promoting good behaviour, preventing bad behaviour and pursuing unacceptable behaviour. I have no submission or evidence which indicates that the Employer does not consider workplace bullying and harassment serious. Further, the Employer has set out what is inappropriate behaviour. However, it would appear that the Employer did not act on Ms Maye's complaints until she resigned from her employment - that, of itself, is inappropriate."

Commissioner Cloghan considered that a balanced approach should be taken and while the FWC does not endorse an 'anything goes' view, allegations which relate to incidents which occurred some time ago and were not pursued with any vigour should not be construed as bullying and gross misconduct behaviour. In particular he stated:

"In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is "guilty of bullying" and "gross misconduct"."

For the reasons above, including that the majority of the alleged incidents occurred some 17 months prior to Ms Maye's termination, during a period in which Ms Harris was experiencing a particularly difficult and traumatic time (due to her husband's illness), the difficulty in establishing if the conduct occurred at all, as well as other factors, that her dismissal was unfair and compensation should be awarded. The determination regarding the amount of compensation was reserved.        

Summary

Although this decision relates to an application for an unfair dismissal remedy and not a bullying allegation, it provides some early guidance on the FWC's likely approach on these matters.  Whilst it indicates a common sense approach to determining bullying behaviour, it highlights the importance for employers to take a proactive approach to bullying complaints and appropriate behaviour in the workplace.

With the implementation of the FWC's jurisdiction to hear bullying complaints, employers should, as a minimum, ensure that:

• a comprehensive policy and complaint process in relation to bullying is in place;
• the policy and complaint process is clearly articulated to employees and adhered to;
• where complaints are made, a prompt and appropriate investigation process is undertaken and documented;
• careful consideration and appropriate and proportionate responses are given to bullying complaints; and
• employees are educated in relation to what is bullying behaviour, that it is not appropriate and reinforcing the employers approach, policy and complaint process.

If you would like more information about the case, the new bullying jurisdiction or implementing appropriate policy, procedures and processes in your workplace regarding bullying, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.