The Fair Work Commission has upheld a major stevedore’s sacking of a self-proclaimed “big fish” unionist and equipment controller for bullying two colleagues who stepped outside a worker-maintained “system of control and internal discipline” by taking a complaint to Human Resources.
The two colleagues found to have been bullied by the long-serving equipment controller are among three stevedores who went on “special leave” in 2014 after providing the Commission with more than 200 alleged instances of bullying.
Their complaints trace back to July 2013, when one of the employees – then one of 23 women among about 600 stevedores at West Swanson Dock in Melbourne – confronted a colleague after hearing him claim that his supervisor was sleeping with another female stevedore. When she later told her female colleague about the comment, that colleague decided to complain to her managers, and she agreed to be a supporting witness.
The third worker, a supervisor, experienced bullying after he resigned from the union and became involved in the case as a support person for the female witness.
The employer dismissed the equipment controller in December 2014 after it substantiated four allegations against him, including that he targeted one of the colleagues who complained of bullying and accused her of pursuing her own agenda to secure a permanent executive committee job.
The stevedoring company said his actions breached its harassment, bullying and freedom of association policies, its code of conduct, his contract of employment and OHS responsibilities, and the enterprise agreement.
The Commissioner threw out the employee’s unfair dismissal claim last week after finding that the decision to terminate his employment was proportionate, supported by the evidence and reasonable in the circumstances. She said the equipment controller bullied his female colleague in breach of the discrimination policy and code of conduct when he trivialised her complaint, tried to isolate her and failed to recognise her right to work in a safe environment, such as by implying that the supervisor not get involved.
The equipment controller intended to “intimidate” her into not pursuing her complaint by saying “blind Freddie” could see all she wanted was an executive committee position and that he was not going to cop being pushed out. Meanwhile, by repeating in a public area his claims to the supporting supervisor, these could also be taken to be “directed” at her, the Commissioner said.
“I agree with the submissions of the stevedore that a person does not have to be present when conduct occurs for conduct to be ‘directed’ toward that person… a campaign of whispers about a person never directly put to that person may easily come within the rubric of bullying,” the Commissioner said.
The Commissioner said she was satisfied the stevedore’s unreasonable and repeated conduct could cause his colleague harm by making her “feel outcast and isolated in the workplace” and would adversely affect her health and safety. Of the equipment controller’s conduct towards the supervisor who supported the two female colleagues, the Commissioner found he bullied and intimidated him but did not breach freedom of association policies by discussing his resignation from the union.
However, she said the equipment controller “intended to intimidate” the supervisor by saying he would be open to “a lot of crap” by his fellow workers if he did not re-join. The equipment controller made the statements in a bid to deter him from his continuing support of their two co-workers who had lodged the initial complaints and to intimidate and isolate him, including by giving him the “cold shoulder treatment”, the Commissioner said.
She also noted the equipment controller considered himself a “big fish” in the union and believed that he still had some sway amongst union members.
“I accept that intimidation does not have to manifest itself in raised voices or physical threats,” she said, finding the conduct amounted to repeated unreasonable behaviour that constituted bullying within the meaning of the company’s discrimination policy.
The Commissioner observed that the incidents occurred when a “code of silence” existed in the workplace and workers maintained a “system of control and internal discipline” in which the equipment controller was “no innocent bystander”.
Noting the two colleagues he bullied had not yet returned to the workplace, she also noted his conduct was “not without consequences for many people”.
This is arguably a case where the management of the company has, until recently, ceded control of the workplace culture to elements of the union and their associates, with a parallel system of control and discipline appearing alongside that of the official mechanisms of control i.e. company line management and the human resources department. What is more, by challenging that parallel union-run system of control, three employees have been bullied and two have been on special leave for almost three years – this is symptomatic of a workplace culture based on intimidation and fear and would also be a very costly absence for the employer.
Managers are the custodians of your organisation’s workplace culture and the key elements of the manager’s role in preventing and effectively managing bullying, harassment and discrimination issues in the workplace. Ignoring these issues can result in a toxic workplace culture with bullying, illness and, in some case, court action from those affected. Your culture can also be ceded to groups of individuals not aligned with company values if you do not manage it effectively.
iHR offers Anti-discrimination and Bullying Training where participants will have the opportunity to explore and apply effective leadership techniques and will learn about three leadership styles that heighten the risk of workplace issues and potential litigation.
