The bully-er or the bullied?
WR&S Bulletin - 15 December 2017
The Fair Work Commission's bullying jurisdiction recently rejected an aged care worker's bullying claim against her supervisors and managers. The employer successfully argued that, at all times, the employee was subject to reasonable management action carried out in a reasonable manner.
- The employee's bullying allegations
- Employer's evidence critical to refuting bullying claims
- Commissioner's review of the evidence
- Lessons for employers in relation to bullying
In a recent case, the FWC considered a large amount of evidence about multiple incidents which the employee claimed were unreasonable management action and constituted bullying1.
The occasions on which the employee alleged she was bullied by way of unreasonable management action included the following:
- An incident where the employee had a minor accident in a work vehicle and failed to report it appropriately.
- A request from her supervisor to do work while she was on leave (which the supervisor was unaware of).
- A request from her manager to discuss an incident towards the end of her work day.
- Her manager issuing a formal warning about her behaviour.
- A complaint made against the employee for smoking on a client site.
- A discussion about the employee picking up the wrong client.
- A request to attend a formal counselling meeting.
The employee alleged that, on these occasions, her supervisor and manager had yelled at, lectured, scared and intimidated her. In relation to one event, she described herself as feeling like a "cornered animal sitting in the corner unable to move".
The employer submitted considerable evidence refuting the employee's claims; including contemporaneous file notes about many of the alleged incidents, which it said demonstrated that it was in fact, the employee who had been behaving unreasonably on each occasion.
The employer also presented clear evidence of the formal steps that it followed to deal with and manage the employee's behaviour and complaints.
Further, the employer submitted that the employee was consistently inappropriate and displayed bullying behaviour to her manager and supervisor, including yelling and screaming, making personal insults, aggressive finger-pointing and blocking her manager's exit from a room.
The Commissioner reviewed the extensive bank of competing evidence and found that it overwhelming favoured the employer. He said that, while it was clear that the employee had a "strong perception" that she had been bullied, that was simply not apparent on the evidence before him.
In fact, it was clear on the evidence that it was the behaviour of the employee which was consistently inappropriate.
Accordingly, the Commissioner found that all of the alleged incidents of bullying were reasonable management action carried out in a reasonable way, as supported by the file notes and documented management procedures.
- Bullying is not always top-down, it can be horizontal or even bottom-up (as in this case).
- People managers and supervisors, should be diligent in keeping contemporaneous notes about incidents that occur. These will be of great value in defending claims of any type, including bullying claims. Following performance management policies and procedures is vital to ensure that management action is considered to be 'reasonable' and therefore not bullying.
Emma Lutwyche | Lawyer
+61 2 8020 7716
- Application by E.K  FWC 3907).
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