Fair Work dismisses bullying claim as behaviour “bordering upon unreasonable”

In one of the first decisions made by the Fair Work Commission under its new jurisdiction the commission has dismissed a bullying claim.

The Fair Work Commission received an application for a stop bullying order from a team manager, known only as “SB” alleging unreasonable behaviour by her team, particularly one employee known as “CC”.

The manager claimed CC deliberately made false allegations against her, spread malicious rumours about her, and harassed and badgered her on a daily basis.

The manager claimed she received a lack of management support and there was an ongoing risk to her health and safety because her employer failed to take adequate action to prevent the bullying.

The employer opposed the application on the basis there was an absence of repeated unreasonable conduct by CC and others in the team.

The Fair Work Commission dismissed the claim, finding while some of the behaviour alleged was “bordering upon unreasonable”, it was outside the scope of bullying behaviour as defined by the Fair Work Act. 

“I am not satisfied that the alleged behaviour occurred and/or was unreasonable in the context that it occurred,” Commissioner Hampton said.

“Some of the behaviour … was bordering upon unreasonable but not such as to fall within the scope of bullying behaviour as defined by the Act. In particular, I cannot be satisfied, based upon the evidence … that the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to health and safety.”

Employment law expert Peter Vitale told SmartCompany it was clear the Fair Work Commission doesn’t want to provoke a “flood of bullying claims”.   

“It is a very careful and considered decision,” he says.

Vitale says the Commissioner’s comments make it clear there were some cultural and personality issues in that particular workplace.

“More often than not when allegations of bullying are raised there will be some element of that in the workplace,” he says.

“The lesson for employers is really to keep your ear to the ground and try and work out whether there are any issues bubbling among staff that are causing any distress or personality conflict and step on it as quickly as possible.”

Vitale says it was good to see management carried out an investigation into the alleged bullying conduct and took it very seriously, “as they should”.

Josh Bornstein, head of employment and industrial law at Maurice Blackburn says it is interesting to see the Commission referred to a workplace investigation commissioned by the employer.

“It shows the Commission will be very cautious of affording such workplace investigations much weight in these cases. It will reach it’s own views,” he says.   

“It may be different if an independent and rigorous investigation takes place and there is disclosure and transparency about that.”   

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