The Commission has considered an application for a stop-bullying
order brought by a casual receptionist against three co-workers
working at a medical centre in Western Australia. The Commission
dismissed the application on the basis that the alleged bullying
was "over-estimated", "insubstantial" and that
there was no repetition of unreasonable behaviour. Further, the
anti-bullying provisions of the Fair Work Act 2009 (Cth)
do not substantially protect a person's feelings.
Factual Background. Mrs Miranda Jane Gore, a
casual receptionist at the Yura Yungi Aboriginal Medical Service in
Halls Creek, Western Australia, filed an application on 16 December
2015 in the Commission for an order to stop bullying against three
co-workers: Mr Nia Evans, Mrs Adrienne Evans and Mrs Kristine
Chadwick.
Mrs Gore claimed that she was bullied and harassed by her
co-workers, whose actions included: (i) speaking to her in an
"impolite tone"; (ii) walking into reception to check up
on her; (iii) praising another employee in front of her; (iv)
reprimanding her for arriving to work late; (v) ceasing to reply to
her text messages; (vi) ignoring her when she suggested
improvements to her manager that could be made to the business;
(vii) being told how to improve her performance by her manager; and
(viii) being ignored when she called out a co-worker's
name.
Legal Background. Section 789FD of the Fair
Work Act 2009 (Cth) provides that a worker is bullied at work
where: (i) an individual or group of individuals repeatedly behaves
unreasonably towards the worker, or a group of workers of which the
worker is a member; and (ii) that behaviour creates a risk to
health and safety. However, a person is not bullied if it is
reasonable management action carried out in a reasonable
manner.
The Commission noted that when considering section 789FD: (i)
"repeated" refers to more than one incident; (ii)
"unreasonable behaviour" is determined objectively having
regard to all the circumstances; (iii) a "risk to health and
safety" is the possibility of being exposed to harm or danger
to one's health and safety and that possibility must be a
rationale and not an ideation; and (iv) "reasonable management
action" refers to the ability of employers to take appropriate
management action, including responding to poor performance, taking
necessary disciplinary action and directing and controlling the way
work is carried out.
Decision. The Commission dismissed the
application, on the basis that the co-workers' actions did not
constitute Mrs Gore being bullied at work because the alleged
bullying was over-stated and insubstantial, with no repetition of
unreasonable behaviour. In particular, the incident involving a
co-worker's "impolite tone" was "too petty to
record in any further detail and does a disservice to the
definition of being bullied at work". In addition, the
Commission said that having a preference about how things should be
done, like Mrs Gore, and suggestions not being agreed to by a
manager, was not bullying. To deprive a manager of the ability to
carry out his or her role in a reasonable way would be contrary to
the intent of reasonable management exception.
Further, the Commission stated that the anti-bullying provisions of
the Fair Work Act 2009 (Cth) are to protect bullying
behaviour and not substantially a person's feelings. The facts
and evidence in the case reinforced Parliament's important
recognition of the distinction between reasonable workplace conduct
and a person having a self-belief or feelings of discomfort. Such
self-belief or feelings do not automatically transform into
bullying. Finally, there was no risk to Mrs Gore's health and
safety by returning to work.
Lessons for Employers. This decision provides
employers an example of the sorts of conduct that do not constitute
bullying within the meaning of the Fair Work Act 2009
(Cth). It also confirms the balancing act that the Commission will
take when considering applications for stop-bullying orders, that
is, the employee's perspective is balanced against the conduct
of others, including reasonable management action carried out in a
reasonable manner.
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