The full bench of the Fair Work Commission has ruled on the reach of the anti-bullying jurisdiction, holding that ‘at work’ means performing work (at any time or location) or engaging in employer-authorised activities.
In this bullying case a manger undertaking performance management of a direct report was found by the Commission not to have engaged in bullying. The manager was instead held to be carrying out ‘an ordinary exercise of management prerogative’.
The Applicant, a senior employee with a Commonwealth department, applied to the Fair Work Commission for an order to stop bullying against his manager who he believed was malevolently micromanaging and intimidating him to force him to resign.
The Applicant alleged that his manager engaged in bullying behaviour, including:
- Telling him to ‘go back to where he came from’;
- Treating him like a ‘slave’;
- Criticising his every move and speaking to him in a condescending and patronising tone;
- Fabricating non-existing performance issues; and
- Making hurtful remarks and intimidating him as a method to force the Applicant to resign.
As a result the Applicant claimed that he suffered high blood pressure, anxiety and insomnia. The Applicant made complaints to senior management and an internal investigation into two particular complaints was undertaken. The Respondent did not find any evidence of bullying. Prior to this, the Applicant had made complaints of bullying against his two previous managers which were unsubstantiated as they were actually genuine performance management actions.
The Applicant’s manager was a senior manager within the department and gave evidence as to several performance related concerns of the Applicant. The Applicant was put on a Performance Improvement Plan (PIP) for a period of five weeks and during this time his manager gave him continuous feedback on his performance. At the end of the process, the Applicant was found to have partially met only one of the five criteria. Notably, several examples of bullying identified by the Applicant related to performance issues contained in the PIP.
The Applicant argued that his manager micromanaged him in a bullying manner and the Commissioner found that he this was a genuine and honest belief. However, the Commission went on to find that the Applicant was not justified in this belief as the ‘bullying conduct’ was truly ‘an ordinary exercise of management prerogative’ in response to his underperformance. The application for an order to stop bullying was therefore dismissed.
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