Despite heightened publicity about new workplace bullying laws, the continual stream of court cases about workplace bullying show that many employers are not getting the message.
The court cases show that many employers continue to get it wrong, resulting in the loss of valuable staff, workplace disruption, lost productivity, and inevitable court orders.
In a recent Administrative Appeals Tribunal decision, Comcare was ordered to compensate a Centrelink employee after her numerous complaints of workplace bullying and harassment to her employer were ignored.
So what were this employer’s fatal mistakes?
The employee in question took maternity leave in 2008 for the birth of her youngest child.
The employee’s absence became prolonged due to personal trauma including the death of her father.
Commencement of workplace bullying
Upon returning to work in mid-2010, the employee experienced difficulties with two new managers who had been appointed during her absence.
The employee began seeking medical treatment for work-related stress.
In February 2011, the employee was temporarily assigned to another area to assist with workload.
The employee subsequently requested that her assignment be made permanent, due to the difficulties she had experienced with the two managers at her usual position. The request was not granted.
The bullying continues
On the employee’s return to her usual job, she again experienced workplace bullying and harassment.
The behaviour complained of included:
- Being belittled and humiliated at team meetings
- Being interrogated about her personal life during work-related meetings
- Being subjected to persistent and unnecessary telephone calls when she was not at work seeking the reasons for her being on personal leave
- Witnessing a manager pretending (with his hands) to shoot a staff member who had asked a question at a meeting
- Being subjected to swearing by a manager
- Suffering an intrusion of her personal space and being stood over her desk by a manager
- Suffering reduced work hours and denial of flexitime opportunity, without consultation
As a result of this treatment, the employee’s stress and anxiety continued.
The employee received some respite from late September 2011 until late 2012, when she was temporarily assigned to another area.
However despite numerous complaints about her usual managers’ conduct and requests not to return, the employee was sent back to her usual job.
In November 2012, the employee was diagnosed with depression and anxiety and did not return to work.
A worker’s compensation claim was lodged and as part of the appeal process, the claim found its way to the AAT.
The AAT was critical of the employer for not taking responsibility at the appropriate time for assisting an employee who was showing clear signs of distress.
The AAT gave short shrift to the employer’s argument that its decision to return the employee to her original position was a “reasonable administrative action taken in a reasonable manner”.
The AAT was “satisﬁed from the evidence that [the employee’s] condition was contributed to, to a signiﬁcant degree, by her employment”.
The employee had made her concerns known to a range of personnel and while “asking an employee to return to their substantive position at the end of a temporary relocation would ordinarily be reasonable administrative action, in this case it was not reasonable given the past history and the likely reaction of the employee, of which the employer was on notice“.
The AAT was satisfied that the employer was liable for the psychological injury caused to the employee and that compensation was payable.
Lessons for Employers
This case is an example of the ‘fatal three’:
- Workplace bullying
- Ignored complaints, and
- An employer receiving an expensive lesson from a court or tribunal
As highlighted in a recent article, many workplace bullying complaints are about managers.
The employer attempted to defend its actions in returning an employee to an environment of harassment and workplace bullying as “reasonable administrative action”.
Not dissimilar to the “reasonable management action” exception in the Fair Work Act’s workplace bullying laws, it is clear that this provision is not a silver bullet for protecting employers from bad managerial decisions placing employees at risk, particularly where employers are on notice of the workplace bullying behaviour.
For employers, a strategy of prevention and effective, early intervention will go a long way to avoiding the pain of workplace bullying litigation.
 Kosteski and Comcare  AATA 217 (14 April 2014)