Poor shift management: Worker claims unfair rosters amount to bullying

Denied shifts and unaddressed complaints spark debate on reasonable management action

Poor shift management: Worker claims unfair rosters amount to bullying

The Fair Work Commission (FWC) recently dealt with an application for orders to stop bullying under section 789FC of the Fair Work Act 2009, where a worker claimed unfair treatment through his employer's shift allocation practices.

The worker alleged he was denied opportunities to work additional shifts and that his complaints about these denials were consistently ignored or inadequately addressed. He claimed that because he raised these concerns, he faced disciplinary action and was eventually stood down from work.

The employer denied these allegations, arguing their actions constituted reasonable management action carried out in a reasonable manner. The decision examined whether the employer's conduct met the definition of workplace bullying under the Fair Work Act.

Stop bullying application key elements

A part-time gym attendant who started work in April 2017 with 15.75 weekly hours saw his minimum weekly engagement increase to 34.75 hours by the time he filed his bullying application. His workplace was at the Albury Wodonga Military Area, primarily at the North Bandiana gym facility.

From 2017 to 2021, he made informal complaints about shift allocations. He claimed knowledge of other employees who had raised more substantial complaints about unfair rostering and alleged bullying behaviour by his immediate manager, including claims about withheld work opportunities.

The worker said that in 2021 and 2022, he made several complaints to senior management about being unfairly denied shifts, wage concerns, and feeling threatened. He claimed these complaints received no investigation or response.

Stop bullying legal requirements defined

The Commission explained that under section 789FD of the Fair Work Act, a worker is bullied at work if an individual or group "repeatedly behaves unreasonably towards the worker" and "that behaviour creates a risk to health and safety."

As stated in the decision: "It will not be the case all actions or behaviour [the worker] disagrees with, or perceives to be to his detriment, or that cause him offense will be considered bullying under the FW Act."

The Commission noted that repeated behaviour "must be behaviour of a persistent nature, although it can be a range of different behaviours over a period of time."

Evidence of alleged workplace bullying

The employer presented evidence that the worker had consistently received opportunities for additional shifts. Records showed he was the highest earner of overtime and second-highest earner of shift penalties for the period between February 2022 and February 2024.

The Commission found some inadequacies in complaint handling, noting: "The [operations manager's] evidence accepts that [the worker's] safety complaints were not thoroughly investigated and nor was he provided with a response."

However, the Commission determined: "[The worker] accepts that [the manager] has not made any direct threats to him. Accordingly, I am satisfied [the worker] has not been subjected to bullying on the above basis."

‘Employer needs to take more care’

The application was ultimately dismissed for two reasons. First, the worker's employment ended on November 13, 2024, making it impossible for the Commission to find a risk of continued bullying at work.

Second, the Commission found no evidence of repeated unreasonable behaviour that would constitute workplace bullying. As stated in the decision:

"What is clear from the evidence in this case is that [the worker] has consistently and repeatedly raised concerns and complaints about rostering and shift allocations for some time... the overwhelming evidence is that [the employer's] management... have genuinely considered what [the worker] has had to say and responded as possible and as appropriate, consistent with its policies and procedures."

The Commission did recommend improvements to the employer's practices: "[The employer] needs to take more care with establishing the basis on which it directs employees not to communicate with others, and more consistency on how it applies its requirements... [The employer] should consider a more clearly established, communicated and transparent process for the allocation of shifts and rosters."