Drive-thru incident leads to police involvement
Workplace bullying is classified as “adverse behaviour” in Australian labour law, which is described as “unreasonable behaviour aimed against a worker.”
According to caselaw, this conduct might involve mental, physical, or verbal abuse and any threatening, intimidating, or disrespectful act.
In serious circumstances, the victim can file a complaint with the Fair Work Commission (FWC), which will review the evidence and determine if the accusations are genuine and if the claims are valid.
In this recent decision, an employee of a famous food delivery service claimed bullying by an iconic fast-food chain.
The bullying claim
Aabid Khan made a bullying claim against McDonald’s Australia Limited and Patrick Bennett, an employee of NGI Holdings Pty Ltd (NGI), a franchisee of McDonald’s. Khan provides food delivery services to Menulog Pty Ltd (Menulog).
The application was listed for a conference last month. Khan alleged that on 25 September 2022, he went to pick up an order from McDonald’s in Wodonga. After waiting in the restaurant for 40 minutes, he was told to use the drive-through to collect the order.
Khan said that when he did so, the restaurant manager called the police “for no reason.” Khan said that he reported the incident to Menulog but said the latter took no action.
In his bullying claim, he said the incident had caused him “mental stress” and that since the incident, he had faced “constant harassment” at the restaurant.
Khan stated that he later received a letter from McDonald’s that “falsely accused” him of abusing its staff and banned him from its restaurants for 12 months.
Khan’s application asked the FWC to “take action” so that the restaurant cannot “lie and harass or bully people.”
Meanwhile, Bennett offered his version of events and said that on 25 September 2022, he received a telephone call from the restaurant manager of the Wodonga McDonald’s, who said that a delivery driver had been refusing to leave the drive-through for over 20 minutes and that when staff had asked him to go to the waiting bay so as not to delay other customers, the driver “had refused and begun swearing, and had been abusive to staff.”
That was when Bennett said they decided to call the police. When they arrived, the police directed Khan to leave the drive-through area and issued him an infringement notice.
Bennett said his only direct contact with Khan was on 30 October 2022 while dealing with an incident involving a different driver, this time at the Birallee McDonald’s.
Khan was present and “seemed to be supporting his fellow driver.” Bennett said that at one point, Khan threatened to take legal action in connection with the incident on 25 September 2022. The police were called to the restaurant. Khan was then directed to leave the premises due to his aggressive behaviour. Bennett said that on 1 November 2022, he issued Khan a notice banning him from entering any McDonald’s premises in Victoria.
The parties’ arguments
McDonald’s submitted that it was not the employer or principal of Khan or Bennett, and insofar as the application was directed against McDonald’s, it said it was “misconceived.”
Last year, McDonald’s faced a wage theft claim of over $250 million following its alleged denial of paid breaks to workers.
On the other hand, Menulog submitted that the application should be dismissed because the relevant conduct “did not amount to bullying.” It also said that Khan had not established “any risk to his health or safety” and “there was no risk that any bullying would occur in the future.”
It further argued that Bennett’s conduct and those of the staff at the McDonald’s restaurants had been “reasonable management action” in response to Khan’s behaviour.
When can the Fair Work Commission make an ‘anti-bullying order’?
The Commission said that it may make an anti-bullying order if it is satisfied that a worker has been “bullied at work” and that there is a risk that the worker will continue to be “bullied at work.”
It also explained that a worker is “bullied at work” if, while the worker is at work in a constitutionally-covered business, an individual or group “repeatedly behaves unreasonably towards the worker” and that behaviour “creates a risk to health and safety.”
The Commission clarified that “McDonald’s has nothing to do with this matter and has no case to answer” since it is not the employer or principal of Bennett or the staff at the Wodonga restaurant.
Additionally, Khan did not name Menulog as a respondent. “He did, however, state in his application that Menulog has a contract with McDonald’s, pursuant to which its drivers can use McDonald’s drive-throughs. He appeared to suggest that Menulog should have intervened on his behalf in some way, either with McDonald’s or NGI. But there is no reason why Menulog should have done so. Menulog has not behaved unreasonably,” the Commission said.
“Khan’s application spoke generally about his experience of ‘constant harassment’… but he provided no details of this. He referred generally to lying, harassment and bullying, but did not say when, where or by whom,” it added.
Thus, the FWC found that there was no bullying at work. The application was ultimately dismissed.