Fair Work finds workplace bullying goes both ways

In a recent case, the Fair Work Commission considered an employee’s claim of bullying perpetrated by two managers. The Commission noted that both the managers and the employee had engaged in bullying and unreasonable behaviour and made recommendations for both parties. 

The employee worked as an area manager of a variety store retailer. He was responsible for the operation of 14 stores across Victoria. The employee submitted several minor complaints of bullying against both the company and his managers, including that he was overworked, that his managers were prone to micromanagement, and that he was forced to take a pay cut during COVID-19.

However, the employee’s most significant complaint was advanced in respect of the company’s restructuring, which saw the control of six Victorian stores be transferred from the employee to another worker. The employee expressed his irritation with the new worker’s appointment to his managers, plainly regarding her as his junior.

Following the restructuring, the managers requested the employee attend a meeting. The employee failed to attend and, two days later, notified the managers that he had been ill. The managers subsequently issued the employee a “bluntly worded” letter of concern, which stated the employee was negligent in fulfilling his employment duties, breached the company’s leave policy and ignored phone calls and meeting requests. The employee submitted this letter amounted to bullying and unreasonable behaviour.

The Hearing

The Commission found that none of the more minor complaints regarding the micromanagement or pay cut amounted to bullying. It found that some of the employee’s actions were “plainly not reasonable” and that his communication with his managers was “at best disrespectful, uncalled for and over-the-top”.

However, the Commission also considered the company’s letter of concern to be unreasonable “at least in part”, noting that alternative responses to the employee’s failure to attend the meeting would have been more appropriate. It found the company’s letter of concern had potential to create a significant negative reaction and a risk to the employee’s health and safety.

Having found fault with both parties, the Commission issued several recommendations. It recommended that the company revise its bullying policy to provide a clearer process for making workplace complaints and provide training on the avoidance of workplace bullying for its staff. It also recommended that the employee and managers participate in a mediation to discuss concerns and document an agreed framework for ongoing reporting and performance assessment.

Key Takeaways

• Employers should adopt a clear and current bullying policy and provide a procedure for making workplace complaints
• Employers should take care to discourage workplace bullying and harassment by all staff, including managers
• For a claim of bullying perpetrated by a manager, the Fair Work Commission will consider whether the conduct was “reasonable management action taken in a reasonable manner”