The Stalking Horse: FWC warns of abuse of stop bullying jurisdiction

It has unfortunately become a common occurrence for employees who are subject to management action (such as the issuing of reasonable and lawful directions or disciplinary processes) to immediately seek redress by filing a claim against their employer (or other employees) alleging things such as adverse action, discrimination or bullying. In these instances, employers often feel obliged to delay or defer any further management action until the employee’s claim is resolved.

In a recent decision dismissing an employee’s stop bullying application, a Deputy President of the Fair Work Commission (FWC) has shone a light on this issue, criticising the filing of the application as a clear attempt to distract from the employee’s own misconduct.

In Karki [2019] FWC 3147, the employee, a Bellman at The Star in Sydney, had initially alleged that the Front Line Manager at The Star had bullied him during and subsequent to an incident in August 2018 when he was observed breaching company policy by using his personal phone whilst on duty. The application was filed shortly after the employer issued him with a warning.

In the application, the employee claimed that the Front Line Manager had yelled at him in front of other people for using his phone whilst on duty at the driveway of The Star. The employee said that he was on his phone only for a matter of seconds to send a text and check the time, which he did not believe could be considered “using” his phone in breach of his employer’s policy.

The employee further claimed that, in two subsequent meetings in relation to this incident, the Front Line Manager had harassed and intimidated him by:

  • raising irrelevant issues such as not smiling or interacting with guests, or demonstrating ‘Star qualities’; and
  • requiring him to attend a meeting to watch the CCTV footage of the incident even though she was not his supervisor.

Subsequent to filing the stop-bullying application, the employee was observed at work spitting into a bin in a public area whilst on duty and was issued with a final warning. The employee requested that this second warning be included in his application and that the FWC issue interim orders preventing the employer from dismissing him while the application was being heard.

The employee believed that this further warning was issued as a direct result of him filing his stop-bullying application, and that he was being specifically targeted. He claimed that he had a bleeding gum (although had not sought dental assistance), and that the employer could not discipline him for this conduct because there were no policies prohibiting spitting.

In response to the stop-bullying application, the employer maintained that it had taken “reasonable management action in a reasonable manner”.

It claimed that it was entitled to discipline the employee in relation to the first incident as the company policy clearly stated that employees were not permitted to use mobile phones unless it was for business-related purposes or for pressing emergency or family circumstances of which they had advised their manager. The employee had been trained in this policy one month prior to the incident.

The employer produced evidence that, in the subsequent meetings, it was the employee who had raised his voice and acted aggressively by banging his hands on the table numerous times, and that it was the employee who had requested that he be shown the CCTV footage.

In relation to the second incident, the employer argued that it was common sense that spitting in public areas is unacceptable and that a policy was not necessary.

Deputy President Sams was not convinced by the employee’s evidence, instead finding that it was, for the most part, made up. In particular, he considered it ‘ridiculous’ to claim that texting was not “using” a phone, or that an employer needed a policy saying that spitting in a public area was not acceptable.

Deputy President Sams preferred the employer’s evidence that it had taken “reasonable management action”. He confirmed that employers are entitled to take such action where they have concerns about an employee’s conduct and are able to prove such conduct. He also criticised the employee for disregarding the employer’s internal grievance procedures and going straight to the FWC.

Deputy President Sams was of the view that it was the employee’s own conduct that brought about the disciplinary action of the employer, and that if the employee was genuinely concerned about his job security, he would have instead sought to ensure that he behaved appropriately in the future.

In relation to his view that this particular application was an attempt to distract from the employee’s own misconduct, Deputy President Sams said the following: 

In my opinion, it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s stop bullying provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process. For some time, I have been troubled that the important and beneficial purpose of the stop bullying jurisdiction of the Commission is being used for a purpose for which it was never intended by the legislature. This has been a strategy to file a stop bullying application as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate or (sic) performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance. This case is an obvious example of this improper purpose.

The application was therefore dismissed.

Lessons for employers

In our experience, it has become increasingly common for employers to be faced with allegations of bullying or other claims about breaches of workplace laws when taking management action. 

Even though Deputy President Sams’ comments in this decision concern the stop-bullying jurisdiction, they still provide comfort to employers that, irrespective of the claims that a disgruntled employee may make to try to distract from the real issues, employers are entitled to take management action, such as issuing directions to employees and commencing disciplinary processes, where that action is justified and reasonable.

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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