Bullied employees cannot act with impunity

In light of a recent case seen by the Fair Work Commission (FWC), it is important to address what is and is not considered workplace bullying and what is appropriate behaviour for employees who feel they are being bullied.

Under Australia’s current anti-bullying laws, an employee working for a mining company based in Western Australia applied to the FWC seeking a stop-bullying order. He claimed that his head of department bullied him through two methods – changing the ratings on his annual performance review and asking him to complete tasks outside of his job description.

The FWC dismissed the employee’s claim after it found the alleged bullying did, in fact, constitute reasonable management action – not bullying or harassment. This was because the employee’s contract allowed him to be directed to complete tasks outside of his specified role as long as the majority of duties were within it. Furthermore, the employer offered him support with the project in question and assigned the project to him based on skills and experience listed in the employee’s CV and shown in his previous work.

Further investigation of the evidence found that the worker had accessed his manager’s electronic diary after receiving a smaller than expected annual bonus. He then discovered an email which stated his performance was to be discussed at an upcoming meeting. The Commissioner did not accept the employee’s claim regarding the changing of his performance appraisal and was critical of the employee’s behaviour in accessing the diary and emails.

The FWC decision shows the employee’s action in accessing the emails without permission was a breach of workplace ethics. Additionally, the worker had secretly recorded meetings without the knowledge of the participants and against explicit requests not to make recordings.

“Because an employee believes that they are being bullied at work does not give him or her immunity from observing all the policies and practices expected in the workplace and in the employment relationship,” Commissioner Cloghan explained in the reasons for his decision, as reported in a Workplace Express article on 17 June.

According to the Fair Work Act, bullying does not include reasonable management action. Isolated incidents are generally not considered bullying as the FWC definition requires behaviour to be repeated as well as unreasonable. The purpose of a stop bullying order is to stop behaviour where there is a continued threat to health and safety.

This case reiterates the need for employers to provide workplace bullying and harassment training to ensure employees understand what does and does not constitute bullying. It is also important for employees who feel they are being bullied to be aware that this does not give them licence to contravene policies, procedures, lawful directions or otherwise behave inappropriately or compromise the employment relationship.