Employer argues employee had other options, but she refused to take them
The Fair Work Commission (FWC) recently dealt with an employee’s claim that she was forced to resign because her employer failed to separate her from her alleged workplace bully, resulting in a “loss of confidence” and “fear for her safety.”
The employee started work in July 2015 at a small craft beer brewery in the regional town of Myponga on the Fleurieu Peninsula.
She was initially employed as a bartender until she had worked her way up to be a brewer. According to records, she was “liked and valued by the owners.” The business also reportedly had duties that were “not slavishly demarked,” so the employee would sometimes work the bar when required and assisted with wholesale activities, including deliveries.
The employee and the alleged bully had been on staff together for quite a while. The latter was older and held a more senior or managerial role.
Concerns reported
Occasionally, over five years, there had been tension between the two. The employee had reported concerns to the employer about the bully’s conduct towards her and other younger staff.
Her reports go as far back as 2017 when she said she “could not comfortably” work alongside the said bully because of her “rude and exclusionary behaviour.”
There was also an incident in October 2021 where the alleged bully “had erroneously adjusted 2.5 hours worked by [the employee] to reduce her pay.”
When the employee told her concerns to the business owners, they corrected the bully’s error, but the employee “remained dissatisfied” since the employer “had put it down to human error.”
There was also an incident in November 2022 when the owners and brewery staff arranged a night out at the Adelaide Casino. The employee said she “felt excluded” by the bully “from being invited to a private hotel room,” arguing that “she did not feel welcomed in the workplace.”
The altercation
On 2 December 2022, the employee was working in the brewery room, seated at her desk, while the alleged bully was elsewhere and working as the venue manager.
Before 10:00 am, the bully swiftly walked into the brewery room and confronted the employee.
The bully stood so close to the employee, and in “a forceful and direct voice” that almost turned to yelling, the bully told her that she (the employee) had left spillage and mess in the bully’s workspace.
The employee said she told the bully to “calm down” and denied the accusation, but the bully “lost her temper” and swore at her. She then picked up a glass of cordial that the employee had on her desk and threw it onto the floor, where it landed near the employee.
The bully then said, “Fucking clean it up! How do you like it?” At this point, the employee said she became “fearful and felt cornered.” She repeatedly asked the bully “to stop and that she did not like the behaviour,” saying it was “out of line.”
The bully did not stop and mockingly said, “Oh, am I? Am I out of line now?”
According to the employee, when she was having “an increasing sense of panic,” she told the bully that she was “on camera,” referring to the surveillance devices around the vicinity. The bully replied, “I don’t care.”
The altercation reportedly lasted only two minutes, with the employee “left shaken.”
After being informed of the incident, the employer reviewed the CCTV footage, which showed the sequence of events without the audio. Around this time, the bully came to the employer and admitted that she had “lost her temper.” The parties failed to reconcile, and the employee handed in her resignation.
Forced to resign
The employee argued that she was forced to resign because the employer “failed to appropriately address its responsibilities” at the altercation incident with the bully.
“[This includes] its responsibility to ensure so far as reasonably practicable that her health, safety and well-being while at work was not put at risk,” the employee said.
She said the employer ignored her request “not to work with or alongside” the bully, which led her “to lose trust and confidence in its handling of the matter” and “become fearful of her safety.”
She explained the employer “unreasonably required her to work in the same workplace on the same days” as the bully.
Meanwhile, the employer said it took the incident “seriously” and “promptly put in place a plan, including securing external professional human resources advice and assistance.” It also said it launched an “immediate disciplinary and performance scrutiny” of the alleged bully.
Investigation was ‘not robust’
In its decision, the commission said the employee’s “dissatisfaction” was caused by the employer’s failure to remove the co-worker from the workplace, saying that she “wanted the [bully] to no longer be employed or, at the very least, to not be rostered on days when she was rostered.”
It said the employee’s belief that “working in the vicinity of [the bully] was inimical to her health was genuinely held, consistent and sincere.”
It also commented on the employer’s investigation of the incident, saying it “was not robust.”
“While [the employer] viewed the CCTV footage, discussions between the owners and [the employee] about the incident and how it left her feeling was only brief,” it said.
“The lack of attention to the incident and failure to secure [the employee’s] version of it meant [the employer] failed to appreciate the seriousness of the incident and its impact on her.”
“For example, simply viewing non-audio CCTV footage meant that the employer had no idea of what was said other than what she was told. By not speaking at length to [the employee] about what was said, she failed to grasp the seriousness of the swearing, the threat of physicality, the yelling and the requests to desist.”
The commission noted the employer’s “lack of engagement” with the worker on the incident itself and “the inadequate conclusions it reached about its seriousness and impact on her.”
Employee had other choices aside from resignation
Despite these observations, the commission said that the employee had other choices aside from resignation.
For example, it said “she had a choice to allow the conflict resolution process being conducted to be completed.”
“She resigned mid-point and knowing it was incomplete. This was a real and effective choice because the process was occurring, had directly engaged her, was being independently and professionally conducted, and had the goal of re-establishing a working relationship between the parties,” the commission said.
“She also had the choice to seek leave, at least until [HR] work was completed. While she had only a small amount of paid leave remaining, the employer had in recent months accommodated leave requests and requirements for time off,” the commission said, adding it was “an option opened up by the employer, but she refused to pursue it.”
“It is not difficult to have considerable empathy for the situation faced by the worker. She rightly put what she considered to be her health and well-being first. She had been the target of an unprovoked incident of workplace bullying, and her decision to resign was not unreasonable,” the commission said.
“This does not, however, make her resignation forced. The employer neither wanted her to do so, had not intended that she do so nor denied her an effective or real choice when doing so,” it added.
Thus, the commission ruled there was no forced resignation, and her employment was not terminated at the employer’s initiative.
