Oct 162015
 

A new anti-bullying policy did not stay the hand of Deputy President Wells of the Fair Work Commission (FWC), who made an order to stop bullying under section 789FC of the Fair Work Act 2009.

Bullying means repeated, unreasonable behaviour towards a worker, creating a risk to health and safety (section 789FD).

Ms Roberts alleged that while working as a real estate agent for VIEW Launceston she was bullied by Mr Bird and Mrs Bird, the principal and sales manager respectively. Of the 18 bullying allegations, 9 behaviours were found to be unreasonable, 3 were not made out for want of evidence and 6 were reasonable.

So what did the “named individuals” do to Ms Roberts?

The Deputy President impugned Mr Bird on only one incident, not enough to hold a pattern of bullying behaviour. Mrs Bird was not so fortunate. Her pattern of behaviour was made out by a raft of actions and comments over 18 months. Some appear petty, but they add up.

Starting at the beginning of the work day, Mrs Bird didn’t say good morning to Ms Roberts. In the words of the Deputy President “Mrs Bird would not acknowledge her in the morning”. Throughout the day, Mrs Bird would deliver the printing and photocopying of other employees to them, but left Ms Roberts’ documents in the tray.

Throughout the day, Mrs Bird would either ignore Ms Roberts or talk to her abruptly. This was evidenced by an email exchange between Ms Roberts and another employee where Ms Roberts expressed and the other staff member agreed that Mrs Bird was unapproachable.

Sabotage and humiliation

The unreasonable behaviour did not just involve petty office conduct. The Deputy President found that Mrs Bird had humiliated Ms Roberts in front of third parties on multiple occasions, sabotaging her relationships with clients and not performing administrative work for Ms Roberts that was within her duties as sales manager. For example:

  • Mrs Bird grabbed a parcel from Ms Roberts in front of the delivery man and told her that she was not to sign for anything. The delivery man gave evidence that Ms Roberts had been belittled and was red in the face.
  • Mrs Bird ignored an urgent request for a silent listing by Ms Roberts for 9 days. Ms Roberts had to raise the issue with Mr Bird to have it actioned. Mrs Bird also posted a rental appraisal to a client of Ms Roberts when emailing was the standard procedure, knowing that the appraisal was needed urgently.
  • A client of Ms Roberts was placed on a collection list for an outstanding debt, despite Ms Roberts telling Mrs Bird that the matter would be resolved shortly on the sale of the property at issue. This strained relations between Ms Roberts and her client.

The pattern of bullying behaviour by Mrs Bird led to Ms Roberts developing and being diagnosed with depression and anxiety.

Months later, and shortly before the hearing, Dr Nathan Lucas declared that Ms Roberts could only return to work if “the Fair Work Hearing occurs and anti-bullying measures are put in place in the workplace.”

What can an employer do?

In this case it was found that the following actions were “reasonable behaviour”:

  • Limiting use of a company laptop to the work location.
  • Requiring that an employee wear a uniform, where a uniform allowance is paid.
  • Requiring that employees not touch the air conditioner.
  • Directing prospective clients to a different employee.
  • Locking drawers that contain cash or valuables.

Each of these was a reasonable business decision.

Lesson: a published policy or well-established practice supporting employer directions can prove that an action was not targeted at a particular employee.

Instituting a workplace policy: anti-bullying?

In response to the stop bullying claim, the employer adopted an anti-bullying policy. The new policy failed to convince the FWC of a real change in the work environment. As Wells DP put it:

“[They] did not consider that any of the behaviour complained of constituted bullying. A lack of understanding as to the nature of the behaviour displayed at work has the proclivity to see the behaviour repeated in future by Mrs Bird.”

The Facebook Incident

This case has been reported in the media under the by-lines “Unfriending is workplace ‘bullying’” and “Un-friend me on Facebook and I’ll take you to the Fair Work Commission.” However, Facebook is just another source of evidence, like a text message, an email, or a statement about a conversation, from which a Commissioner can make an inference.

The inference made by the Deputy Commissioner is particularly scathing:

“This action by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour, the likes of which I have already made findings on.

… I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts on 29 January 2015, when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her. (emphasis added)”

Facebook can be an indicator of the state of the relationship of parties because it characterises people as either friends or not. Alone, the “unfriending” was not an instance of unreasonable behaviour but when taken with text messages and the spoken comments of Mrs Bird the FWC determined that Ms Roberts had been bullied.

Lessons for Employers

You should have clear policies in place around the points of friction between employees and management. In this case those policies covered topics such as air conditioning, computer use, and assignment of prospective clients, and protected Mr Bird against claims of unreasonable behaviour.

If bullying occurs between employees in your business, a policy is a good place to start but it is not a good place to stop. A new policy must be backed by real action against the perpetrators if it is to hold up in the FWC.

Peter McNamara

Principal

You can read the case of Roberts v VIEW Launceston & Ors [2015] FWC 6556 here: https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC6556.htm

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