Australia: Blurring of professional and personal relationship prevents stop bullying order

Last Updated: 20 July 2018
Article by Michael Selinger and Georgie Richardson
Most Read Contributor in Australia, September 2018

A recent decision of the Fair Work Commission (Commission) has examined the blurred lines between professional and personal relationships within the workplace. The Commission rejected an employee's claim that her managing director bullied her through comments about her appearance, personal life, and sick leave.

In Ms Caroline McCutcheon v Fine Wine Wholesalers Pty Ltd; Mrs Veronica Lawrence [2018] FWC 3814 (McCutcheon), the Commission observed that the relationship and level of familiarity between the two female colleagues gave context to the managing director's comments that included that the employee's boyfriend, a co-worker, might "break her heart", and that she preferred the employee's "natural look" when it came to her use of make-up.

What was the nature of the colleagues' relationship?

In McCutcheon, the managing director, Ms Lawrence, and the area manager, Ms McCutcheon, formed a relationship that exceeded that usually found in an employment relationship.

The Commission established that there was a blurring of the line between employee and acquaintance/friend, evidenced when Ms McCutcheon visited Ms Lawrence during a time when Ms Lawrence was bereft and stayed for a period to socialise, drink wine, and notably when Ms Lawrence passed comment about Ms McCutcheon's boyfriend.

Ms McCutcheon alleged that Ms Lawrence had engaged in the following bullying behaviours:

  • had spread untrue malicious rumours in front of the sale team regarding her boyfriend
  • had made humiliating remarks to Ms McCutcheon about her appearance when she was unwell due to illness, when her appearance was affected due to an allergic reaction, and when she wore "too much make-up" and looked like "Coco the Clown"
  • embarrassed Ms McCutcheon by informing her that she looked good for her age, had a better figure and legs than herself in circumstances where Ms McCutcheon is much younger than Ms Lawrence
  • would advise female staff to wear revealing items of clothing, short skirts and low cut tops to achieve sales
  • made remarks that she couldn't afford Ms McCutcheon's wages if she did not hit her budget
  • had set unreasonable work expectations which included a daily run from seven calls to 12 calls a day and increasing administration requests regards to new business accounts
  • questioned the taking of sick leave
  • illegally requested Ms Lawrence's medical records and illegally discussed the health of Ms McCutcheon with the medical centre's reception
  • required Ms McCutcheon to work on a public holiday in or about April 2017
  • caused the workers' compensation insurer not to pay Ms McCutcheon's compensation claim.

Ms Lawrence and Fine Wines disputed the claims, asserting that many of the alleged behaviours did not occur or, if they did, they were not unreasonable or were reasonable management action dealing with Ms McCutcheon's poor performance. To the extent that the Commission found the conduct occurred, it found that the level of familiarity between the managing director of Fine Wine Wholesalers Pty Ltd and the employee was such that the comments could not be deemed to be unreasonable behaviour constituting bullying within the meaning of the Fair Work Act 2009 (Cth) (FW Act). In many cases where performance was an issue, the Commission relied on the legal authorities that held that 'some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work'. Nevertheless, despite finding that the conduct was not bullying, the Commission stressed that being well acquainted with someone in the workplace did not excuse inappropriate or unsafe conduct.

In what circumstances will a stop-bullying order be granted?

Observing that section 789FD(1)(a) of the FW Act requires that an employee is subjected to repeated unreasonable behaviour to establish workplace bullying, the Commission in McCutcheon found that the managing director behaved unreasonably towards the worker only on one occasion. In this instance, the managing director had made belittling comments about the employee neglecting to make proper arrangements for a client function in front of guests at the event. However, as this was a single occurrence rather than repeated unreasonable behaviour contemplated by the anti-bullying provisions of the FW Act, a stop-bullying order could not be granted.

The Commission was satisfied that the colleagues had fostered a level of familiarity between the two of them that may have surpassed that usually found in an employment relationship. It was emphasised that such a relationship does not excuse inappropriate comments made, but does provide context for a comment such as a preference for a "natural look" being considered by the managing director as a compliment.

What should employers do when bullying complaints arise?

In light of recent bullying related cases, employers should ensure that appropriate steps are taken once employers become aware of bullying behaviour in the workplace.

In Re Watts (2018) FWC 1455 (Watts), which was delivered in March of this year, the Commission found that a human resources advisor and a manager consciously and unreasonably decided not to investigate an employee's bullying complaints. The human resources advisor and manager failed to follow the company bullying and harassment policy, and had imposed their own subjective requirements on the information the employee needed to provide to them before they would investigate the allegations.

In Watts, the Commission found there to be "no reasonable explanation" for the employer's failure to act on the bullying complaints made by the employee, and was left in "no doubt" of the need for the Commission to intervene and make an order to prevent further bullying in the workplace.

Lessons for employers

Employers should take a proactive approach to matters of bullying and harassment in the workplace. Appropriate and current bullying and harassment policies, procedures and training should be adopted and implemented by employers. By adopting preventative measures, employers can determine what appropriate action should be taken in the given circumstances.

Employers should look to:

  • have policies and procedures in place for employees to raise bullying complaints
  • ensure employees are aware that the blurring of professional and personal boundaries in the workplace does not provide a safeguard against inappropriate comments that may be made
  • properly investigate bullying complaints when they arise
  • take active steps to minimise the risk of further bullying through training, disciplinary action, counselling and assistance to those who may be affected by bullying.

Once an employer is on notice of concerns of bullying, it is important that this is not ignored.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Michael Selinger
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions