Since 2014, employees have been able to apply to the Fair Work Commission (FWC) to seek anti-bullying orders against their employer if they have been bullied at work. A worker is bullied at work if:
- an individual or group repeatedly behaves unreasonably towards that worker; and
- that behaviour creates a risk to health and safety.
This jurisdiction is considered by many to be a ‘toothless tiger’ in that the FWC cannot order any monetary compensation in favour of workers who have been bullied at work. Despite this, and even where claims are without basis, these types of applications can be time consuming and distracting for employers to manage, as demonstrated in a FWC case from April this year.
In this case, a pharmacist alleged that he had been bullied at work because his employer failed to address a number of concerns he had raised, including a request to provide him with adequate support staff. The pharmacist asserted that the failure to provide support staff on his Saturday shift constituted ‘bullying’ because, amongst other things, he was stressed and overworked which meant he could not have adequate breaks.
The employer denied that the pharmacist had been bullied, arguing that a second pharmacist was not necessary based on the Saturday sales figures. Additionally, the employer had engaged an intern pharmacist and was training a dispensary assistant to further assist the pharmacist when necessary.
In the hearing, the employer produced evidence which refuted the pharmacist’s allegations, including a detailed analysis of CCTV footage which showed that the pharmacist spent between 1-2 hours each Saturday shift on his phone (excluding his breaks), sitting at the back area of the shop or on a stool, ‘basically ordering the staff around’.
Furthermore, it was found that it was the pharmacist who was unable to work harmoniously with his co-workers and was the aggressor in the discussions, by swearing and at one point telling the Area Manager to ‘shut up’.
The FWC ultimately determined that it did not find that any of the employer’s employees behaved unreasonably towards the pharmacist, nor that the employer imposed an unreasonable workload on Saturdays.
The only instance of unreasonable behaviour that the FWC found was that of the pharmacist himself in the way in which he treated other employees.
Lessons for employers
This case highlights that whilst employers should consider the requests and concerns of staff, it is entitled to refuse such requests where reasonable and based on objective analysis. An employer does not need to accede to employee requests just because the ‘bullying’ word is deployed.
Despite this, employers should not ignore complaints raised and should consider seeking advice on the management of bullying allegations, particularly where such allegations are made during a performance management process. This is because leaving such matters unaddressed increases the likelihood that an employee will pursue a bullying application and/or make a workers’ compensation claim, which, even if lacking merit, will be a drain on the employer’s time and resources.
HR Legal is delivering seminars and a webinar on ‘Managing Workplace Bullying’ this month, click here for more details and to register.
Case study: Tamer Eskander  FWC 2579 (15 April 2019)