The Fair Work Commission has dismissed an employer’s jurisdictional objection to an application for a stop bullying order after finding that the employer’s disciplinary process was not ‘reasonable management action’.
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.
The Fair Work Commission has revoked the only anti-bullying order that has been made since the jurisdiction was created after the conflict ended.
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.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.
A recent case in the Fair Work Commission (FWC) highlights how broad anti bullying legislation is, after a male employee was the subject of a number of orders, including refraining from exercising in front of a female employee whilst at work.
A female employee lodged an application for an order for her male colleague to stop bullying her. The FWC did not publish the names of the employees, the workplace or the history of the matter as the parties remain working together. However, the orders which were made by consent allude to the likely background of the matter.
A recent decision of Fair Work Australia has highlighted the need for employers to properly investigate employee complaints.
In Harley v Aristocrat Technologies Australia Pty Ltd  FWA 62 an employee was awarded the maximum compensation payable under the Fair Work Act 2009 (Cth) (ie six months salary) after being forced to resign following “a course of harassment” from one of his managers.