Up, up and away: Commission finds employee’s conduct of upward bullying towards manager warranted disciplinary action

Workplace bullying occurs when a person (or a group of people) repeatedly behaves unreasonably towards another worker (or group of workers) and that behaviour creates a risk to the worker’s (or group of workers’) health and safety.

Bullying is commonly seen to occur either between peers or in a “downward” sense, where a person is bullied by another worker who holds a higher position. However, bullying can also occur “upwards”, where a manager or other person in a senior position is subjected to bullying behaviour by a subordinate employee.

Upwards bullying can occur where, for example, a worker refuses (or fails) to co-operate, behaves in a rude or offensive manner, or becomes hostile towards a person who holds a higher position in the workplace.

The Queensland Industrial Relations Commission (QIRC) was recently required to consider a case of upward bullying in the matter of Cummings v State of Queensland (Queensland Health) [2022] QIRC 72.

In this matter, an employee had lodged an appeal notice before the QIRC, submitting that disciplinary action which had been proposed by their employer in relation to alleged upward bullying was unwarranted.    

The employee was employed by the State of Queensland (the Employer) as an Enrolled Nurse in the Specialist Outpatient Department (the Department) at the Bundaberg Hospital.

In or around September 2020, the Employer organised an external investigation into allegations of inappropriate conduct, bullying and harassment within the Department. The investigation found a number of allegations which had been made against the employee to be substantiated. These included:

  • Over a period of many years, the employee colluded to undermine the manager by intimidating her, referring to her in a derogatory manner and engaging in conduct that was harmful to her emotional and psychological health; and
  • During a team facilitation day regarding the culture of the Department, the employee was disrespectful, denigrating, openly aggressive and offensive toward the manager in front of a number of witnesses.

The Employer commenced a disciplinary process with the employee in relation to the investigation’s findings. During this process, the employee denied the majority of the allegations and admitted only that she could be abrupt at times and that she would be mindful of this in the future.

The Employer did not accept these responses and ultimately decided to issue the employee with a reprimand. It also required her to attend a meeting to discuss professional standards and imposed a performance improvement plan.

At this point, the employee lodged their appeal notice with the QIRC. The QIRC was then tasked with determining whether the decision-making process and subsequent disciplinary action was fair and reasonable in the circumstances.

The employee argued that the disciplinary process could have been prevented entirely had the Employer acted on its workplace bullying concerns and managed her conduct at an earlier stage. 

The Employer stated that it had previously raised concerns about the employee’s behaviour with her. It submitted that its proposed disciplinary action was appropriate in this instance having regard to the seriousness of the allegations.

The QIRC accepted the Employer’s view, finding that the evidence was consistent with a “common theme” across the allegations that the employee’s communication with her manager and staff was deficient.  The evidence presented a pattern of behaviour whereby the employee repeatedly blamed the manager for her own behaviour and suggested that the manager was responsible for the Department’s toxic workplace culture.

In relation to the employee’s claim that the Employer could have managed her conduct sooner, the QIRC acknowledged that:

“It is incumbent on employers to manager their employees and address grievances, or poor workplace culture, in a timely manner. A failure to do so can result in significant challenges for those departments, agencies and employees involved.”

However, on the balance of probabilities, the QIRC found that the Employer took an “entirely sensible approach” in imposing the disciplinary action to deter the employee against similar behaviour in the future.

Therefore, the QIRC held that the disciplinary action was fair and reasonable and dismissed the appeal.

Lessons for employers

Instances of workplace bullying are most commonly seen in a “downward” sense, where a worker is bullied by someone in a higher position within the workplace or between peers. However, this decision serves as a reminder that workplace bullying is not limited to those instances and can also occur in an “upward” sense.

Employers should take allegations of bullying in the workplace seriously and ensure that they are dealt with in a timely manner. As the QIRC noted, a failure to efficiently manage upward bullying or bullying in general can have wider effects on staff and the culture of the workplace generally.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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