The debate continues: when does a “robust” style of supervision become bullying? A Queensland supervisor’s occasional “unprofessional and inappropriate” communication style did not amount to workplace bullying and harassment, Fair Work Australia has found in upholding her unfair dismissal claim.

In October 2011, a Torres Strait Islander Corporation Health Services employee complained to her employer that the supervisor had bullied and harassed her. Several weeks later, the supervisor’s employment was terminated, after an independent investigation found she had breached the employer’s code of conduct in behaving in an “aggressive, threatening and bullying manner” towards the worker over a two-year period. The supervisor lodged an unfair dismissal claim.

FWA Commissioner Chris Simpson heard that among a host of allegations, the supervisor was accused of verbally abusing the worker on the phone. She also allegedly told the worker in a sarcastic tone that the worker deserved the employee-of-the-year award, after the worker accused her, at a staff meeting, of stealing an idea.

The supervisor’s response was “defensive” but “not completely surprising”, Commissioner Simpson said. “[The worker’s] clear insinuation was that [the supervisor] had taken her idea and proposed it as her own… [The challenge would] have been embarrassing for any manager and although [the supervisor’s] retaliation was unprofessional and inappropriate it needs to be seen in its proper context. Even accepting [the worker’s] version it is not a clear case of workplace bullying or harassment. It would seem the [employer] had more appropriate options available under [its bullying-prevention policy]. The policy says that if a complaint is substantiated… possible disciplinary action can include a verbal or written apology; transfer to another position; warning notes on file; demotion, or termination. Termination was too harsh.” Commissioner Simpson ordered the employer to pay the supervisor $5883 in damages.

Meanwhile, a prominent employment lawyer has warned that workplace bullying will never be eradicated while it continues to be treated as an OHS issue. Maurice Blackburn Lawyers Principal Josh Bornstein called for the Fair Work Act or other legislation to be amended to allow victims of workplace bullying to complain to a court or tribunal “well before the situation has escalated to the point of damage to an employee’s health. Early intervention is often critical”, he observed.

The common belief that workplace bullying was a safety issue was one of a host of myths surrounding the problem, Bornstein said – another was the belief that workplace bullying should be criminalised. “Criminal law should only intrude into the workplace in extreme situations… The criminalisation of workplace bullying is a misguided and ineffective way to address workplace bullying and provide victims with remedies.”

The Victorian Government last year amended provisions of the State Crimes Act on stalking (for which jail terms of up to 10 years applied) to cover “serious” forms of bullying. Called Brodie’s Law, the amendment was named after Melbourne waitress Brodie Panlock, who took her own life in 2006 after being relentlessly bullied by co-workers. According to Bornstein, Brodie’s Law was a “strong” symbol, but “useless in about 95 percent of workplace bullying cases”. He called for an investment in an educational campaign about workplace bullying, together with legal reform which would reap a huge dividend by saving millions in lost productivity, healthcare costs and social welfare payments.

 

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