Australia: Decision is an insight to FWC's approach in new bullying jurisdiction

Key Points:

Harris v WorkPac Pty Ltd places a relatively high threshold to establish workplace bullying and has the potential to inform the Fair Work Commission's future approach.

The recent decision of Commissioner Cloghan in Harris v WorkPac Pty Ltd [2013] FWC 4111 provides an illuminating example of an assessment of workplace bullying by the Fair Work Commission. With the enactment of recent legislation¹ conferring a specific workplace bullying jurisdiction on the Commission to commence on 1 January 2014, the decision is a timely insight into the approach of the Commission in its newly conferred jurisdiction.

The facts

The proceedings concerned the unfair dismissal of the Applicant, Mrs Karen Harris, who had commenced employment with Rockingham Business Centre (Employer) on 29 November 2004. At the time of her dismissal, Mrs Harris held the position of Recruitment Co-ordinator Team Leader.

During the course of her employment, Mrs Harris worked with a Ms Rachel Maye who had been engaged as a Business Centre Administration Manager. In early December 2012, Ms Maye resigned from her position. As a part of the process around leaving her employment, Ms Maye participated in a telephone exit interview with the Employer's managerial staff.

During her exit interview Ms Maye made various complaints against Mrs Harris in respect of Mrs Harris' apparent treatment of her, reading out "excerpts" from a notebook in which she kept a record of her interactions with Mrs Harris during her employment.

Among the claims made during Ms Maye's exit interview (and later put to Mrs Harris) were that:

• Mrs Harris was aggressive in every dealing she had with Ms Maye;
• Mrs Harris constantly belittled Ms Maye, both in one on one dealings and in front of other team members and she treated Ms Maye with disdain;
• Mrs Harris swore and screamed at Ms Maye regularly;
• Mrs Harris constantly embarrassed and humiliated Ms Maye in front of other staff members and showed no respect to Ms Maye as a team member;
• Ms Maye felt that Mrs Harris complained about Ms Maye with the purpose of getting Ms Maye into trouble.

Ms Maye also provided to the Employer a number of specific examples of such behaviour which had occurred between 1 July 2011 and 22 October 2011 and during July 2012.

Following Ms Maye's complaints, on 19 December 2012 Mrs Harris was advised that she was required to attend a meeting on 20 December 2012 with the Employer to discuss "serious concerns the management ha[d] in relation to allegations relating to [her] treatment of a fellow team member [Ms Maye]".

At 8:26am on 20 December 2012, Mrs Harris received an email detailing further information regarding the allegations.

At approximately 2:30 pm, following a meeting with the Employer in which she denied the allegations and provided a written response, Mrs Harris was advised that her employment was being terminated immediately for bullying Ms Maye which the Employer considered gross misconduct. Mrs Harris collected her personal belongings and left the premises.

On 3 January 2013, Mrs Harris made an application to the Commission for unfair dismissal.

Applicant's evidence and Submissions

During the hearing, Mrs Harris submitted that

• Allegations that she bullied Ms Maye were fictitious, vexatious and without basis;
• Ms Maye's allegations "[were] extremely vague, to the point that many of the alleged incidents cannot be recalled. The only specific examples relate back to July and October 2011, over 12 months before any complaint was lodged";
• the complaints of bullying and harassment were only made after Ms Maye tendered her resignation;
• there was no impartial investigation and the process followed in the investigation was flawed;
• she was denied natural justice in not being given the appropriate opportunity to prepare and respond to the allegations; and
• the Employer's response to the allegations, by dismissing Mrs Harris, was disproportionate and failed to take into account her eight years of dedicated service with no prior warnings.

In summarising the allegations made by Mrs Maye against her, Mrs Harris stated the allegations to be:

"petty and unfounded and reading between the lines, the basic gist of it all was that I didn't want to be her friend."

Employer's evidence and Submissions

The Employer submitted that:

• Ms Maye had made allegations against Mrs Harris before tendering her resignation;
• Ms Maye resigned from her employment "due to the treatment she received from the Applicant and that treatment came to the Respondent's attention through an exit interview with Ms Maye";
• the allegations were sufficiently serious so as to warrant an investigation that was "impartial and conducted promptly, confidentially and objectively in accordance with the respondent's harassment, Unlawful Discrimination and Workplace Bullying Policy";
• it is commonly accepted that bullying is behaviour that intimidates, offends, degrades or humiliates another. Mrs Harris was found by the Employer to be "constantly aggressive towards her [Ms Maye], dismissive of her" and, "embarrassed her, humiliated her and belittled her to the point she felt she had no option [but] to resign";
• it took "bullying in the workplace incredibly serious[ly] and once satisfied bullying had/was occurring was required to take steps to ensure the health and safety of all employees";
• it considered all other options, but in light of the seriousness of the behaviour, it was determined that Mrs Harris' employment had to be terminated due to gross misconduct.

The Commission's Findings

In light of the conflicting evidence, the Commissioner was satisfied that while the working relationship between Ms Maye and Mrs Harris had its difficulties it appeared that the Employer had not acted on Ms Maye's complaints until she resigned from her employment. The Commissioner held that such a course, of itself, was inappropriate.

Notwithstanding the conflicting evidence as to what actually occurred, the Commissioner noted that neither Ms Maye nor the Employer could provide any contemporaneous documentation of the alleged bullying incidents nor any written record of the disciplinary investigation setting out the reasons why the Employer formed the view that Mrs Harris was "guilty of bullying" Ms Maye.

While being satisfied that there were certainly differences between Ms Maye and the Mrs Harris, having evaluated all the circumstances, the Commissioner was not satisfied that the alleged conduct of Mrs Harris as set out in the disciplinary investigation occurred.

The Commissioner noted the contrast between the apparent lack of response to Ms Maye's original complaints and the speed with which the disciplinary process against Mrs Harris was carried out following Ms Maye's exit interview. The Commissioner found:

"While events can unfold quickly, it does not mean that an employee has been treated unfairly. However, in these circumstances, it was essentially one person's feelings regarding another person's behaviour - behaviour, which was in the main, 17 months old and denied. In my view, a more thoughtful approach was essential."

Having found that Mrs Harris was unfairly dismissed from her employment and given that reinstatement was not sought, the Commission considered an award of compensation to be appropriate and reserved judgment on the quantum of that compensation.

Assessment of Workplace Bullying

Following the determination that Mrs Harris was unfairly dismissed, the Commissioner made a number of interesting observations in respect of the treatment of workplace bullying by the Commission.

Most significantly, the Commissioner stressed that not all conflict between employees in the workplace should be classed as workplace bullying and that employees required, by mere fact of their presence in a workplace, some degree of resilience. To that end, the Commissioner stated:

"While the Commission does not and should not endorse the view that "anything goes" at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with any vigour and relates to incidents which occurred some time ago."

The Commissioner went on to state that:

"In my view, the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is "guilty of bullying" and "gross misconduct".

New Anti-bullying Provisions

This decision is particularly timely given it was handed down in the wake of the introduction Fair Work Commission's new anti-bullying jurisdiction which will come into effect on 1 January 2014. The provisions in Part 6-4B of the Fair Work Act 2009 allow workers engaged by a constitutionally covered business² who reasonably believe they are being bullied at work to apply directly to the Commission for an order to stop the bullying.

The new provisions include a definition of bullying which states that a worker is bullied at work if, while the worker is at work, an individual or group of individuals repeatedly behave unreasonably towards the worker and that behaviour creates a risk to health and safety.

The new provisions expressly exclude from the definition of bullying "reasonable management action carried out in a reasonable manner".

The Commission's powers will extend to making an order for the bullying to stop if it is satisfied that bullying has occurred and there is a risk it will continue to occur. Those orders can be made against the employer, co-workers and visitors to the workplace, including union organisers, but cannot include financial penalties, reinstatement or compensation.

At this stage, it is premature to speculate as to how the Commission's workplace bullying jurisdiction will evolve over time. Certainly, decisions placing a relatively high threshold to establish workplace bullying such as Harris v WorkPac Pty Ltd have the potential to inform the Commission's future approach. Given that potential, the decision may well be of some comfort to employers anxious to come to terms with the scope and possible future use of the Commission's new powers.

This article was first published in the Law Society Journal, September 2013

Footnotes

¹Fair Work Amendment Act 2013 (Cth)

²See s 789FD(3) of the Fair Work (Amendment) Act 2013

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.