Claims of workplace bullying are a disturbingly familiar story. An employee has a performance problem and their manager decides to do something to fix it. The manager gives the employee some critical feedback, which the recipient feels is unwarranted. The employee makes a careless mistake and the manager berates them in the lunch room. Finally, the manager decides to put the employee on a performance improvement plan, only for the employee to take an extended absence on sick leave, and bring a bullying complaint against the manager.
Resolving a bullying complaint inevitably involves strong emotions on both sides. The employee making a complaint may genuinely feel they have been unfairly targeted, while the person complained against commonly reacts with shock and disbelief.
In 2014, for the first time, Australian workers were given a legal avenue to address workplace bullying while it was going on. Before that, they could claim compensation for mental stress caused by bullying, but only after the damage was done.
Changes made to the Fair Work Act mean workers can apply for a “stop bullying order” against an organisation, an individual, or a group of individuals. If an application is successful, the Fair Work Commission can make any order it considers appropriate to protect a worker from the risk of further bullying, short of requiring payment of money or imposing a financial penalty. These amendments provided, for the first time, a legal definition of bullying as “repeated unreasonable behaviour”. Importantly, the definition specifically excludes “reasonable management action carried out in a reasonable manner”.
Despite initial fears the changes would spark an avalanche of applications for “stop bullying orders”, in the 2015-2016 financial year the Fair Work Commission received just 734 applications. Less than 8 per cent of these proceeded to a decision being issued by the Commission, and a “stop bullying order” was issued by the Commission in only seven cases.
The Commission appears to take a pragmatic approach in determining if bullying has occurred. In the recent case of Edwards v E&S Trading Co, Rebecka Edwards, a sales consultant at the E&S kitchen and bathroom store in Moorabbin, claimed she’d been bullied due to incidents that included:
- a colleague accusing her of spilling coffee beans in the kitchen and yelling at her to clean it up
- other employees arguing in the company’s reception area in front of customers
- rumours among other staff that Edwards had “egged” a colleague’s car
- allegations that a colleague was “stealing” Edwards’ sales
- management ignoring her complaints, thereby perpetuating these behaviours.
As is often seen in bullying matters, the complainant was also subject to performance management, and had received a final warning for her own conduct.
The Commission accepted that Edwards was anxious and distressed and genuinely believed she’d been bullied. They also noted that the E&S managers could have handled the performance management process in a better way.
But in light of how the evidence from other witnesses sharply contrasted with Edwards’ own, the Commission decided it could not objectively conclude Edwards’ colleagues had “repeatedly behaved unreasonably” and bullied her. The performance management process, although not perfect, was deemed “reasonable management action”.
In another 2016 case, Western Australian truck driver Bevan Gillies claimed he was the victim of a sustained campaign of bullying and intimidation by his depot manager at HPS Transport, including:
- giving the driver a warning letter after he refused to complete an afternoon run
- singling out the driver for failing to complete and sign the employer’s uniform policy
- giving the driver a warning when he turned up four hours late to work [his start time was 3am], and subsequently standing him down with no pay.
However, the Commission considered that all these incidents were consequences that flowed on from Gillies’ own actions, and that the manager had taken reasonable actions in a reasonable manner. Importantly, it concluded that as the depot manager no longer had any direct dealing with Gillies, there was no risk of him being further bullied, so the “stop bullying order” application was dismissed.
4 TIPS TO MINIMISE THE DAMAGE CAUSED BY WORKPLACE BULLYING CLAIMS
- Be prepared, but not panicked, about bullying complaints
- Have a policy that outlines expectations of employee behaviour in the workplace
- Investigate any bullying allegations that are raised, and take action if necessary
- Be especially careful to follow due process when dealing with performance management.
Elizabeth Ticehurst is Special Counsel – Employment at KPMG.