The Fair Work Commission has ruled that a Melbourne childcare worker who received “heavy handed” treatment from her boss and intolerance and low-level anger from a colleague was not bullied under the Fair Work Act, but has recommended that the employer improve its performance management process.


The employee, who was named only by the initials YH in the Fair Work Commission finding, claimed a co-worker bullied her on numerous occasions between 2010 and 2014.

YH worked in the same room as the colleague in 2010, and then again in 2014 after three years in another room. YH claimed her colleague yelled at her on several occasions, threatened to “kick her out” of the centre’s room for three-year-olds, and asked about a co-worker’s sexuality after she gave her a lift home.

But the co-worker in question told the commission she believed the employee had performed below expectations and had “not pull[ed] her weight with respect to providing care needs to the children”.

Early this year, the employee received a written warning for leaving wooden steps where toddlers could climb them and fall. Her director also counselled her about applying the wrong sunscreen to a child at the centre.

YH lodged a complaint with the centre’s committee of management about her treatment, but it was dismissed as unsubstantiated after an investigation by two committee members. The committee found there had simply been a “history of interpersonal conflict” between the two workers, which did not amount to bullying.

The FWC agreed with their view, dismissing YH’s bullying claim and finding she was likely difficult to supervise and prone to avoid unpleasant or undesirable tasks. The FWC did, however, find YH’s co-worker had acted in a “heavy-handed” way and the centre had not managed the issue well. He said the evidence indicated that the employee and the colleague “probably did not like each other, and may even have been mutually hostile toward each other”, but didn’t go much further than that.

“[The colleague] was, in all probability, quick to express herself with criticism or with an angry voice or body language,” he said. “Necessarily, human behaviour in the workplace is an interaction between two or more people. While workplace behaviour is often of a transactional or collaborative nature for positive effect, it is not always so; in many instances the way people behave will depend on how people behave to them.”

The Commissioner said that the colleague may well have been upset, exhibited intolerance or low level anger, but, while undesirable in a community based child-care centre, it did not constitute unreasonable behaviour under s789FD(1).

“Plainly, in concept, some interpersonal conflicts or workplace gossip can be bullying behaviours, although the ones exhibited in this matter are not,” he said.

The Commissioner said the director was also entitled to counsel the employee over this year’s incidents, but noted that she had been “heavyhanded and insufficiently allowing of the possibility that the matters reported to her by [the colleague] might be wrong”. The director had made strong statements to the employee, “apparently conclusions reached without dispassionate inquiry of [her] and not connected with what might be the usual prior polite managerial enquiry of ‘might you have forgotten?’ or ‘can you explain why you didn’t mention …?’ about the first incident”.

He said he might have found that the director bullied the employee if she had gone ahead with plans to provide her with a second warning.

“At that point, the argument that [the director’s] actions might not be reasonable would become an issue of significance if it could also be found there had been a failure to accord [the employee] fair procedure prior to deciding a warning would be provided.”

The Commissioner recommended that the centre encourage its director “to adopt and follow a performance management process that ensures early judgements about poor, or less than satisfactory, behaviour are not reached by her without allowing the employee to whom she is talking to understand the nature of the complaint and to then respond”, but otherwise dismissed the application.

This case shows that expensive and time consuming bullying cases can be negated or avoided if procedural fairness is demonstrated and management actions are “reasonable”. Our Equal Employment Opportunity, anti-bullying training for managers focuses on the responsibility as 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.


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