Bullying might not always be in the eye of the beholder

By Charles Power on July 24th, 2017

Workers who reasonably believe that they have been bullied at work may (if eligible) apply to the Fair Work Commission (FWC) for an anti-bullying order.

However, it is not enough that workers genuinely believe that they are being bullied at work for the employee to access to FWC’s jurisdiction. The belief must be reasonable in an objective sense. For example, it cannot be based on an irrational or absurd view.

A reasonable person, having regard to the circumstances, must see the behaviour as unreasonable.

The fact the FWC forms a view that a management interaction with an employee could have been done better, does not make the action unreasonable.

This was highlighted in Krnjic v Bunnings Group (2017), where a retail worker alleged bullying by his supervisor when she made a remark about his appearance, which he found to be deeply disrespectful and hurtful.

The FWC agreed with the findings of the employer’s internal investigation that in raising the issue of the employee’s appearance was, at best, insensitive and inappropriate.

Where were you?

Over the next two weeks the employee objected to his brusque treatment by the supervisor who queried his prolonged absences from the public area of the store (absences that were explained by the employee as searching for product in the warehouse).

The FWC declined to conclude that the employee was being bullied by the supervisor.

The supervisor’s manner and her actions in the circumstances might have been more sensitive but they did not constitute workplace bullying. The employee was not being singled out, micromanaged, or treated differently from anyone else in the same situation.

The FWC also ruled there was not sufficient similarity between the upsetting conversation and the interactions about the absences to find that there was a concerted pattern of behaviour that involved repeatedly behaving unreasonably.

The FWC observed there were some concerning aspects involved in all the circumstances of this matter. In particular, the employer suspended the employee from work – without informing the employee why this occurred – after a complaint was made by the supervisor.

The employee had to seek an explanation from the HR department, who sent a letter detailing the allegations because senior managers in the store were not prepared to make themselves available to speak to the employee about his concerns.

The employer also issued a directive that the employee not attend the store as a customer until such time as he was cleared as fit to return to work. The reason for this was not clear.

Strong personalities

The FWC observed the matter involved two strong personalities; the employee who had worked at the store for a long time and was understandably proud of his product knowledge and his ability to assist customers and other staff members, and his supervisor who was a relatively new employee and endeavouring to work with her team, and carry out her role and responsibilities in a way that she believed was appropriate and in accordance with what was expected of her by her employer.

These factors created a degree of tension and difference of view, but did not involve bullying.

How do you and your company identify, prevent and deal with bullying in your workplace?

As you know, under health and safety legislation you have an obligation to protect the welfare of your workers. This includes doing everything you reasonably can to prevent the risk of bullying in your workplace.

Anti-bullying legislation, introduced in January 2014, requires that businesses are proactive about prevention and that they are prepared to handle any complaints of workplace bullying.

If you are aware of the risk of bullying and recklessly allow a worker to be exposed to a risk of serious injury, you could be found guilty of reckless conduct, which carries a potential jail sentence and/or fines of up to $600,000.

Not only do you have an ethical duty to help put a stop to workplace bullying but it also makes absolute business sense to do so.
That’s why you need a copy of The Bullying Guide.

This 49-page eBook will help you to identify exactly what constitutes bullying and what you should do if an allegation is made. You’ll find out:

  • How to recognise the different types of workplace bullying
  • How the new FWC anti-bullying scheme affects your workplace
  • 10 things you can do that will help identify bullying in your workplace
  • 6 different legal claims you could face if bullying occurs in your workplace
  • 6 things you can do to mitigate the risk of a claim being made under the anti-bullying scheme
  • 14 things you must take into account when developing your anti-bullying policy
  • What you need to do as soon as an employee makes a bullying allegation
  • 6 steps you should take when investigating a bullying allegation
  • How to determine whether unlawful bullying has occurred before beginning a formal investigation
  • How to determine what action you should take against the perpetrator when bullying has occurred

The Bullying Guide will help you take the proper steps to prevent bullying from happening in the first place and ensure you are well-prepared in the event that it does.

Get your copy today.

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