Managing people

Both sides at fault in bullying dispute

The FWC has said it will close a bullying case if both sides agree to a set of recommendations, otherwise, it will continue and seek further evidence. 

An HR officer and a sales and operations manager were accused of bullying an area manager of a retail store chain after he “reacted badly” to a business restructure. 

The area manager applied for a “stop bullying” order against them. The restructure included handing over some of the stores he managed to a co-worker. 

The restructure followed complaints by the area manager about his workload, plus management concerns that he did not communicate with them and submit reports often enough.

The FWC found the restructuring and implementation process was reasonable but said that his reaction was not, including hostility and issuing unreasonable demands. This included issuing an “attacking” email against the HR officer and operations manager which sought to remove them from involvement in the restructure process and accused them of racial discrimination and bullying. He also claimed that when COVID-19 restrictions hit, he was forced to sign an agreement reducing his pay to a part-time rate, although his hours worked did not change.

The email demanded that they “cease involvement” in the process, claimed they were “personally legally responsible”, threatened to publish all their work communications with the co-worker, demanded to know the HR manager’s qualifications, and demanded that they review all their actions and “report back” to him, insinuating that they had acted illegally.

A second email, copied to senior management, described both of them as unprofessional, dishonest, and disrespectful. In reply, the HR officer accused him “bluntly” of negligence and misusing the leave policy after he failed to show for a meeting (despite later providing a medical certificate). A company director who had received the copied email above then sent him a letter accusing him of various forms of being uncooperative and claiming that his emails amounted to harassment and would amount to bullying if they continued. He signed off by telling the employee to stop sending the emails, said that he had empowered the HR department to take action to stop his conduct, and said that the employer had no obligation to respond or give in to his demands.

Bully v bully?

The FWC opined that the director’s actions may have stepped over the boundary of “reasonable management action done in a reasonable way” and could have amounted to unreasonable behaviour creating a risk to the employee’s health and safety. One letter was sent very soon after the meeting he failed to attend and the director knew that he was unwell and seeking medical help.  It was copied to four other people, presented as a “my way or the highway” directive, and did not provide any warning or opportunity to respond. 

The FWC found that the above conduct could potentially amount to bullying, but it would have to hear evidence from the parties involved before making a decision. The employee’s conduct was also unreasonable – it appeared to be dysfunctional and should not have been tolerated. However, calling such conduct to account also had to be done in a reasonable way, otherwise, a risk to the employee’s health and safety could arise. It was unclear whether the employer had investigated the concerns raised by the employee, and the FWC described its anti-bullying policy as “observably outdated”. 

Decision

Given that there appeared to be unreasonable conduct by both parties and gaps in the evidence provided, the FWC said there were two possible solutions:

1. Relist the matter and seek further evidence.

2. Each party could agree to recommendations made by the FWC.

Those recommendations included:

  • The employer revise its bullying and personal leave policies, provide anti-bullying training, and the parties agree to mediation to discuss concerns and expectations
  • The employer withdraw its letters in return for an acknowledgment by the employee that the way he raised his concerns was inappropriate.

Each party’s acceptance of the recommendations would be treated as their apologies to each other.

The FWC then gave the parties two weeks to respond.

What this means for employers

Even if an employee’s conduct is irrational and/or bullying in nature, the employer’s own conduct needs to remain calm and professional (which this employer’s staff did initially, but not continually), otherwise, matters may soon become ugly, as in this case. 

The decision also demonstrates the wide range of remedies available to the FWC when faced with applications for “stop bullying” orders.

Read the judgment: Shu Chen [2021] FWC 5347 (29 September 2021)

 

Free Online HR Solution

Manage your employees with ease using our free Online HR Tool for up to five employees. Assign contracts and policies from an extensive library of legal documents, add performance KPIs and more. To get access, simply join Business Australia as a free member.

Already a member? Get started
 

Found this useful?

Subscribe to our newsletter and receive the best business tips and articles straight to your inbox.

Thank you for signing up to our newsletter. You're one step closer to receiving more insightful information to help better your business.

We take your privacy seriously and by subscribing to our newsletter you agree to the terms of our Privacy Policy available below.