With only 12 weeks left until the Federal Government’s new workplace bullying laws come into effect, employers are quickly running out of time to ensure they are fully prepared. Would you know the difference between someone who is a workplace bully and someone that is just rude?
With the expected inundation of media coverage about the new laws’ commencement and likelihood of increased workplace bullying complaints from employees, it will be crucial for employer’s to understand what is and is not workplace bullying under the new legislation.
Yet again the spotlight has been shone on an employer that got two fundamental steps wrong with its workplace bullying investigation:
- It mischaracterised the employee’s behaviour as bullying and harassment; and
- It failed to choose appropriate disciplinary action.
As the Commission has already highlighted, avoiding excessive sensitivity in the workplace, and now ‘mere rudeness’, must all be taken into account when investigating workplace bullying.
Background
A senior employee, with an admittedly ‘abrasive personality’, was recently dismissed[1] for bullying and harassment by her employer following a workplace investigation that involved months of protracted discussions and varying allegations about her management style and behaviour.
The employee was invited to attend multiple meetings over the first half of 2012 where some, but not all, allegations were put to her.
Allegations of behaviour over the six month period included:
- intimidating various staff members;
- engaging in ‘mind games’;
- having a hostile and confrontational managerial style;
- failing to inform superiors of a medical emergency; and
- disclosing confidential information.
According to the employer, the senior employee had repeatedly breached her employment contract and its workplace policy resulting in her immediate dismissal in July 2012, following a final warning in May 2012.
The Decision
The FWC agreed that the allegations against the employee were serious and a cause for concern, however it observed there was a “significant disconnect between the allegations and the evidence”.
More than one procedural defect let the employer down during its investigation of the employee’s behaviour.
There was no valid reason for the employee’s dismissal.
While the behaviour was recognised as inappropriate, lacking, and even rude, there was no evidence to sufficiently establish bullying and harassment as per the company policy.
Failing to properly notify the employee of all allegations of misbehaviour, even when further details were requested, meant that she was unable to properly respond to the allegations resulting in a lack of procedural fairness.
No final warning was provided in writing at the first meeting and subsequent meetings failed to properly cover incidents that were due to be discussed, indicating to the FWC the incidents were not in breach of company policy.
The FWC held the dismissal to be unfair and awarded the employee $9,320 in compensation.
Lessons for Employers
Unfortunately for yet another employer, its bungling of a workplace bullying investigation meant the employee’s dismissal became an expensive lesson.
From 1 January 2014 there will be even less room for error with commencement of the new workplace bullying laws.
It is essential to now be sure about what you are investigating and that your HR investigative processes are sound and correct.
Employer’s need to be alive to the possibility of misconceived complaints by oversensitive or misguided employees. ‘Mere rudeness’ should not be conveniently accepted or mischaracterised as bullying.
Ultimately any disciplinary action needs to be proportionate to the gravity of the employee’s conduct.
[1] B v Aero-Care Flight Support Pty Ltd [2013] FWC 6559 (4 September 2013)
