The Clash: The FWC on employee disputes and workplace bullying

When employees clash it can sometimes result in claims that one or both are bullying the other. When emotions are running high and differences are unable to be resolved, employees often turn to the anti-bullying jurisdiction of the Fair Work Commission (FWC).

Under the Fair Work Act 2009 (Cth) (FW Act), the FWC can hear a bullying claim and make any orders it considers necessary (other than orders involving monetary compensation) to stop bullying from continuing. Before making such orders, the FWC must first be satisfied that bullying has actually occurred.

Two recent decisions from the FWC examined situations where employees claimed to have been the victims of bullying, but objectively, it was found that they were not.

In Pastor [2019] FWC 257, an Assistant in Nursing claimed that she was bullied primarily by a fellow Assistant in Nursing as well as a manager at the aged care facility where they worked.

The employee claimed that her colleague had bullied her by:

  • shouting at her and threatening to hit her in the face;
  • shouting at her and telling her to leave her alone;
  • elbowing her in the waist in passing; and
  • intentionally flicking water on her.

The employee claimed that the manager had bullied her by:

  • progressing bullying complaints against her even though the complaints had been withdrawn;
  • failing to properly investigate the complaint that she was elbowed in the waist;
  • primarily rostering her to work in a more demanding area of the aged care facility rather than rotating her in other areas like her counterparts.

In considering the matter, Deputy President Binet examined each of the alleged incidents and heard evidence from a range of witnesses including the employee, the colleague, the manager and a number of other employees.

The Deputy President concluded that objectively, the alleged incidents of bullying either did not occur or did not occur in the manner described by the employee. For example, the Deputy President found that water had not been deliberately flicked on the employee, but rather, it had splashed from inside a sink close to where the employee was sitting.

The application was ultimately dismissed and, in reaching this conclusion, the Deputy President commented that “It is a characteristic of the human condition that, from time to time, work colleagues do not get on harmoniously”, and highlighted the need “to distinguish between conduct evidencing a disagreement from conduct the constitutes bullying for the purposes of the FW Act.”

In another decision, Eskander [2019] FWC 2579, the FWC considered whether it should make orders to stop a pharmacist from being bullied at work.

The pharmacist alleged that he was bullied at work when he was rostered to work on Saturdays without the assistance that he believed he required. The pharmacist claimed that the employer’s conduct in replacing a dispensing technician with an intern pharmacist placed unreasonable pressure on him. The pharmacist claimed that the intern was incompetent, which resulted in him doing double the work. The pharmacist alleged that he had complained to his employer that the staffing levels on Saturdays given that, in his opinion, the pharmacy traded at the same rate on Saturdays as it did during the week when more staff worked.

The employer did not agree with the pharmacist’s position. At the FWC hearing of the matter, it produced evidence that the pharmacy traded at about half the rate of any weekday and did not warrant a second pharmacist or more support staff. It also produced evidence of CCTV footage captured in the pharmacy, which showed that the pharmacist spent a good amount of time on Saturdays sitting and looking at his phone.

The employer also gave evidence that the intern pharmacist was fully qualified for the role and it was the pharmacist who acted unreasonably towards her. On one particular occasion, his aggressive and intimidating conduct reduced her to tears in the workplace and resulted in two employees seeking counselling. The employer gave evidence that, on that occasion, the employee had verbally abused a number of employees both in person and over the phone. One employee said that it was the pharmacist who was unable to work harmoniously with his colleagues, not the other way around.

Senior Deputy President Hamberger found that bullying had not occurred and no one had acted unreasonably toward to the pharmacist. He commented that the employer had not imposed an unreasonable workload on the pharmacist on Saturdays and at all times, he had access to adequate assistance.

In concluding his decision, the Senior Deputy President commented that,

The only clear evidence of unreasonable behaviour in this matter concerns the [pharmacist’s] own conduct on 3 November 2018. His behaviour on that day was completely unacceptable, as was the way he spoke to a number of other employees of the employer.

 

Lessons for employers

These cases demonstrate that minor clashes or differences of opinion between employees do not necessarily amount to bullying for the purposes of the FW Act.

Employees should understand what is and what is not bullying in the workplace through clear training and a well-structured anti-bullying policy.

Whilst true workplace bullying should not be condoned by employers under any circumstances, employers and employees alike should be aware that not every flare up in emotion or disagreement in the workplace is bullying.

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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