Determining a complaint of workplace bullying requires a clear understanding of what is, or is not, workplace bullying.
When faced with a complaint of mistreatment by an alleged workplace bully, employers have only one real option – investigate the complaint.
Employers will be caught out, however, if they blindly accept the matters alleged in a complaint as opposed to gathering and properly analysing the evidence of alleged wrongdoing through the investigation process.
The profiled unfair dismissal claim[1] in this article demonstrates how the Fair Work Commission will aim to strike a balance between taking workplace bullying complaints seriously and creating a workplace environment of excessive sensitivity.
Background
The employee in question worked for the employer for 8 years, most recently in a managerial position, with no prior disciplinary record.
In early December 2012, a co-worker resigned and participated in an exit interview where she outlined a number of concerns that she had with the employee’s conduct over the course of her employment. This was not the first time these concerns had been raised.
Alleged behaviour such as swearing, yelling, belittling, embarrassing and humiliating the co-worker and generally displaying a lack of respect appeared to the employer to amount to workplace bullying.
Importantly, five of the seven alleged incidents had occurred approximately 18 months prior to the co-worker’s resignation. The last incident allegedly occurred at least six months earlier.
Following a relatively swift HR investigation after the aggrieved employee’s resignation, the employer summarily dismissed the alleged workplace bully for gross misconduct and harassment.
The employee challenged her sacking by way of an unfair dismissal claim with the Fair Work Commission.
The Decision
Faced with conflicting evidence and lack of contemporaneous evidence in support of the bullying allegations, the FWC commenced with a two-step inquiry.
- Did the alleged workplace bullying conduct occur?
- If the complained of conduct did occur – did it have the effect as alleged by the complaining employee?
Although recognising that differences certainly existed between the complainant and the alleged wrongdoer, after evaluating all the circumstances, the FWC was not satisfied that the alleged conduct found by the workplace bullying investigation actually occurred.
In particular, the FWC:
- Took account of the alleged bully’s admission in evidence that when her husband was in a coma she may have been a “short” or “oversensitive” at work
- Cautioned that it “has to be watchful that particular incidents (especially where the protagonists disagree) are deemed as causing such feelings as being “humiliated”, “dismissive” and “embarrassing””
- Recognised that the modern workplace “comprises of persons of different ages, workplace experience and personalities – not divine angels“
- Cautioned against creating “a workplace environment of excessive sensitivity to every misplaced word or conduct“.
The FWC viewed critically the employer’s failure to produce any contemporaneous documentation about the incidents, a written record of the alleged verbal bullying complaints or a written record of the disciplinary investigation.
The FWC was less than impressed about the prolonged period between the employer first receiving the complaints and its commencement of a workplace investigation. The FWC made clear in this case that it was not prepared to confirm the alleged behaviour as workplace bullying given that it was not pursued with any vigour by the employer having regard to the lapse of time involved.
Lessons for Employers
With a potential influx of workplace bullying complaints from 1 January 2014, it is crucial for employers to be clear about what does constitute workplace bullying.
The fact of a workplace bullying complaint having been made is not determinative as to whether workplace bullying actually occurred.
Some complainants may not understand the proper definition of workplace bullying and be quick to label any insensitive or impolite behaviour as bullying.
As the FWC has cautioned – employers need to be mindful that just because an employee claims to have been hurt, embarrassed or humiliated it does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct”.
Although employees may at times be confused as to the behaviour that constitutes workplace bullying, employer’s who get it wrong will likely find themselves making unwanted visits to the Fair Work Commission.
[1] Harris v WorkPac Pty Ltd [2013] FWC 4111 (30 July 2013)
