Anti-bullying order avoided after bosses reform behaviour

The FWC has declined to make an order against a radiology company found to have bullied an employee, saying its recent “careful attention to procedural fairness” made it unlikely its conduct would continue. The FWC found that the behaviour of two managers, who arrived unannounced to berate a new radiographer before initiating disciplinary proceedings, constituted bullying under s789FD of the Fair Work Act 2009.

It is alleged that during this meeting, the general manager behaved unreasonably by berating him, whilst the Human Resources Manager visually demonstrated amusement at his predicament. The Commissioner said the HR manager found the employee “problematic” and his communication “insufficiently subservient and respectful of authority.” She also thought his complaints about his colleagues’ work practices were “inappropriate.”

In September 2014, the Human Resources Manager sent a letter headed “Disciplinary Process” to the employee. In the letter, a number of alleged issues are referred to, said to have occurred between May and September 2014, including efficiency, following direction, attitude and rudeness.

The Commissioner, however, said that the employee’s communications, “while occasionally lengthy and verbose…” were not inconsistent with the performance of his duties. “Reasonable minds may differ in relation to the efficiency and appropriateness of the relevant work practices at the clinic where [the employee] is employed,” he said. “However, differences of opinion about these things did not reasonably warrant ‘disciplinary action’ as opposed to discussion about appropriate procedures with the employees involved.”

Rejecting the employer’s contention that the actions constituted “reasonable management carried out in a reasonable manner”, the Commission earlier dismissed a jurisdictional objection saying that conflating performance management and disciplinary action within its management policy was part of the problem. “In my view, it could be somewhat confusing to [the radiographer] that while the [employer’s] intention was the performance management … the action was in fact disciplinary in nature, which [he] found threatening,” the Commissioner said.

He said it did not require the “wisdom of the ancients” to appreciate the effect of the general manager and HR manager’s visit to the employee who had only recently started work and was still on a probationary period. “I consider that a simple and reasonable course of action would have been to advise [the radiographer] of the proposed meeting and, even if only in the most summary terms, the purpose of the meeting, either by telephone or email, and attempt to explain the expectations of [the employee’s performance of his duties] in the particular circumstances obtaining at the Clinic, in a supportive way,” he said.

Despite the bullying behaviour and the parties’ inability to agree on draft terms and conditions issued by the FWC, the Commissioner said he was unable to make an order against the employer because he was not satisfied there was an ongoing risk, as required under s789FC of the Act. He said that the employer’s actions could “not be faulted” despite the “highly adversarial” and volatile situation, which included inflammatory and derogatory emails sent by the radiographer.

The employer had subsequently withdrawn its disciplinary action, the two managers no longer directly interacted with the radiographer, the company’s highest level of management was now dealing with the situation “with restraint and patience,” it had not responded inappropriately to the radiographer’s inflammatory emails and it stood him down with pay while his work was performed by another “at an additional expense” while its management procedures were followed. “On balance, in light of the evident intentions of the [company and its managers] to follow fair procedure, I am unable to be satisfied that as long as the procedure is followed, with the same intention and caution, there is a risk that bullying of [the radiographer] will continue,” the Commissioner said.

iHR believes that Managers’ and Team Leaders’ have a responsibility as the custodians of their organisation’s workplace culture. A key element of the manager’s role is preventing and effectively managing bullying, harassment and discrimination issues in the workplace. iHR offers training for Managers and Team Leaders to help prevent such incidents.