The rules don’t apply to me if I think I'm being bullied!

Background

The applicant was engaged by CITIC Pacific Mining Management Pty Ltd (CITIC) as an IT application developer.

In February 2014, the applicant made an application to the Fair Work Commission (the Commission) for an order to stop bullying against CITIC. The applicant alleged:

• his manager changed the weightings (ratings) in his performance appraisal which resulted in him receiving an annual bonus less than what he expected; and
• his manager erroneously allocated tasks to him irrespective of whether they were within his skills or position description.

The applicant had accessed his manager's emails without authorisation, and read an email between his manager and another senior employee regarding CITIC's concerns with the applicant's performance. This was the basis upon which the applicant formed the view that his manager changed the weightings in his performance appraisal.

Before making lodging the application with the Commission, the applicant had made complaints to CITIC on the matters forming the bullying allegations. The complaints were investigated by CITIC and found to be unsubstantiated.

The Commission conducted a conference in relation to the application. At the conclusion of the conference a recommendation was made. The applicant rejected the recommendation and the matter proceeded to a hearing and determination.

Finding

In relation to the first allegation the Commission found, on the evidence, that the applicant's performance weighting had not been altered.

In particular, the Commission found that the payment of a discretionary bonus is a matter for an employer's judgment and an employee's belief that they should receive a greater amount does not of itself, constitute workplace bullying.

Further, the Commission took a dim view of the applicant's action in accessing his manager's emails with no authority to do so and found that if an employee considers they are being bullied, that does not provide the employee with an "immunity from observing all policies and practices expected in the workplace and in the employment relationship."

In relation to the second allegation, the Commission also found this was not sustained. The terms and conditions of the applicant's employment clearly allowed CITIC to vary the applicant's duties.

Although the applicant may have considered that the task allocated to him was outside his skills and capability - this view was not supported by CITIC, his CV, the position description or his employment to date.

The Commission observed that:

"It is not sustainable for employees to say that a task is beyond their skill level and if the Employer does not agree, allege that it is workplace bullying. Such a situation would be tantamount to the Commission endorsing a one sided self determining premise as bullying in the workplace."

As a final point, the Commission was highly critical of 5 voice recordings of meetings recorded by the applicant without the participant's knowledge, despite an express direction not to record the meetings.

The Commission observed that although an employee may consider they have been bullied, "that belief does not authorise the employee to behave in any fashion they think appropriate."

The application was dismissed on the basis that the first allegation did not occur and the second allegation was not bullying or unreasonable behaviour and was reasonable management action undertaken in a reasonable manner.

Lessons

• The decision provides further welcome clarification [click here] of what falls within reasonable management action taken in a reasonable manner.
• It is incumbent upon complainants to ensure that they behave in appropriate manner, within their area of authorisation and in accord with the employer's policies and procedures. Further they do not have immunity simply because they have made a bullying or other complaint.

If you would like more information about the case or bullying in general, 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.