Australia: Employee made to feel worthless was not bullied, despite insensitive comments

Last Updated: 3 May 2018
Article by Brian Powles

In a recent case, John Krnjic [2017] FWC 3688, the Fair Work Commission (FWC) found that a Team Leader did not bully a Team Member despite her comments being "insensitive".

Mr Krnjic commenced employment with Bunnings in 2009. In April 2016, a new Team Leader was appointed to his division.

On 19 May 2016, the Team Leader was working with Mr Krnjic and asked what happened to his face. Mr Krnjic, whose "face droops" and "is unable to move his left arm", stated that he found the question "deeply disrespectful and hurtful". The Team Leader contended that she only asked because she wanted to ensure his health and safety.

On 8 June 2016, Mr Krnjic went to the tool shop to get a Work Assisted Vehicle. He contended the Team Leader rang him and engaged in "incessant questioning". Another employee described her actions as "pure harassment".

On 9 June 2016, Mr Krnjic went to retrieve a Work Assisted Vehicle for another employee, however on his way back he was asked for some help. Mr Krnjic argued the Team Leader "burst into the aisle and abruptly asked [him] what [he] was doing there." He claimed he was singled out and treated differently from other Team Members.

On 10 June 2016, Mr Krnjic requested to speak with the Store Manager about his concerns, but was told she was too busy. He became increasingly stressed and took two days off work because of this work related stress.

On 15 June 2016, a meeting between the Coordinator and Mr Krnjic was held and he was told he had been suspended and an investigation was being carried out. He received a letter informing him that he was required to attend a meeting on 22 June 2016 to address allegations that he was not performing tasks as directed and had spoken to his Team Leader disrespectfully.

Mr Krnjic claimed the whole process made him feel "worthless and totally degraded" and sought an order to stop bullying.

Bunnings rejected the application by arguing a lack of repeated unreasonable behaviour.

Decision

The FWC noted there were three requirements for an order to be granted. Firstly, there must be repeated unreasonable behaviour, which can occur over different periods and encompass a range of behaviours. Secondly, there must be behaviour considered by a reasonable person to be unreasonable. Lastly, there must be a link between the unreasonable behaviour and a risk to health and safety.

The Team Leader's comments were found to be "at best, insensitive and inappropriate", but they were not delivered in a "malicious way" and did not satisfy the requirement of repeated unreasonable behaviour.

The FWC found the Team Leader's actions on 8 and 9 June 2016 did not constitute unreasonable behaviour. It was practical for her to want to know where each Team Member was given that she was responsible for them.

It was noted by the FWC that because she was a newly appointed Team Leader, she may have dealt with matters in a way that concerned long-standing employees. However, the FWC stated this did not constitute workplace bullying.

As a result, the FWC dismissed the application.

Key issues for employers

This matter highlighted that reasonable management action performed by an employer does not constitute bullying, even if it did involve "insensitive and inappropriate" comments.

The FWC also highlighted several "concerning" aspects of the case that employers should be aware of. Mr Krnjic was suspended after making a complaint about his Team Leader, but was not immediately informed of the reason for his suspension. Further, his senior managers did not make themselves available to speak to him about any concerns that he had.

It is important that employers provide a reason to their employee if they are suspended, and make time to listen to any concerns that they might have.

Read the full decision here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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