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Fair Work Commission warns of “excessive sensitivity” in the workplace while granting unfair dismissal to employee accused of bullying

A woman who argued she was unjustly accused of bullying was unfairly dismissed, according to the Fair Work Commission, which also found businesses need to guard against creating workplace environments of “excessive sensitivity”.

The finding has significant ramifications for businesses in how they classify bullying – but it also underlines the importance of keeping documented evidence of bullying and making accusations within a reasonable time frame.

In this particular case, 18 months had passed from the first “incident” to the employee’s termination.

The Fair Work Commission found Karen Harris, an employee of mining recruitment firm WorkPac, was accused of bullying by another employee, Rachel Maye. The bullying allegedly took the form of swearing, being insensitive and embarrassing Maye in front of other employees, among other incidents.

However, the FWC found there were several problems with the accusations. There was no documentation of bullying incidents ever taking place provided to the FWC, the incidents themselves had occurred over a year before the complaints were investigated – and the investigation occurred after the alleged bullied employee had left the company.

WorkPac was contacted this morning, but declined to comment.

The FWC heard Harris denied the interactions took place at all, although admitted during a certain period of time she was “short or oversensitive” due to her husband’s terminal illness – he was in a coma.

Maye didn’t provide any documentation about the incidents.

“I received no written record of the disciplinary investigation setting out the reasons why the Employer formed the view that Mrs Harris was “guilty of bullying”,” the Commissioner found.

The Commissioner also found while the concept of “anything goes” at the workplace is clearly wrong, it’s important businesses don’t confirm bullying behaviour as anything that hasn’t been investigated properly, and happened “some time ago”.

“In my view, the commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct,” the FWC found.

“The workplace comprises of persons of different ages, workplace experience and personalities – not divine angels.

“Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is ‘guilty of bullying’ and ‘gross misconduct’.”

WorkPac submitted the terminal illness of Harris’ husband didn’t factor into the case – but the FWC disagreed.

“The terminal illness and death of one’s spouse is a significant lifecycle event, and is specifically acknowledged in industrial instruments. Besides that, it is part of the humanity in human resources.”

Rachel Drew, partner at TressCox Lawyers, told SmartCompany this morning any bullying accusation requires written evidence.

“If you’re looking at a complaint of any type, whether it’s bullying or anything else, one of the first things you look at is whether it’s a recent complaint, or something else.

“Also, are there witnesses, and is there documentation? Documentation is simply taking notes of events – it can also be email communications.”

Part of the problem in the WorkPac case is the investigation only began after Maye had resigned. The FWC pointed out this was “inappropriate”.

“It is notable that five of the seven particular incidents are 17 months old at the time of the Applicant’s termination,” it found.

Drew says it is “extremely important” businesses investigate complaints as soon as possible.

“This also makes you wonder about the gravity of the event – if the victim of the complainant had sat on that for 18 months, was it really as serious at the time it occurred?”

In the meantime, Drew says, it’s encouraging the commission has taken this view, saying workplaces should make it a practice of developing “a little bit of resilience”.
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