12 Sep 2013

Fair Work Commission expects a certain resilience from workers making bullying claims

by Michael Byrnes

Not every employee who claims to have been hurt, embarrassed or humiliated has been bullied.

The Fair Work Commission has signalled it will not automatically assume that an employee's hurt, embarrassment or humiliation has been caused by bullying (Harris v WorkPac Pty Ltd [2013] FWC 4111), in a decision that could affect the consideration of future bullying claims.

A working relationship on the rocks

Karen Harris worked with Rachel Maye. When Ms Maye resigned in early December 2012, she went for her exit interview. The key part of the interview was her allegation that Mrs Harris bullied her by swearing and screaming at her, constantly embarrassing and humiliating her in front of others, and complaining about her to get her into trouble. She had made these complaints before, but the employer had not acted on them.

The employer took swift action this time; Mrs Harris was told on 19 December that she had to attend a meeting the next day about her alleged treatment of Ms Maye. She did so, denying the allegations and providing a written response. At 2.30 on 20 December she was told her employment was being terminated immediately for bullying Ms Maye, which her employer considered gross misconduct.

On 3 January 2013, Mrs Harris applied to the Fair Work Commission, claiming she had been unfairly dismissed. This meant the Commission had to consider the allegations of bullying which were the basis for the dismissal.

Employees aren't angels – or devils

The Commissioner found that Mrs Harris was unfairly dismissed. While he was satisfied that the two women's working relationship had its difficulties (and Mrs Harris admitted being stressed and "a bit short at work"), he wasn't satisfied that the alleged conduct set out in the disciplinary investigation occurred because there was: 

  • conflicting evidence; 
  • no contemporaneous documentation of the alleged bullying incidents; 
  • no written record of the disciplinary investigation setting out the reasons why the employer formed the view that Mrs Harris had bullied Ms Maye.

He was also critical of the speed with which the complaint was handled: "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."

He also took note that Ms Maye had been described as "a sensitive person", and the observation "we had to tread gently with her performance managing".

Commissioner Cloghan then said:

"In my view, the Commission has to be watchful that particular incidents (especially where the protagonists disagree) are deemed as causing such feelings as being “humiliated”, “dismissive” and “embarrassing”… 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. 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”." [emphasis added]

So what does this mean for bullying claims?

The Harris v WorkPac Pty Ltd decision suggests the Fair Work Commission may tread cautiously when it begins to deal with actual bullying complaints from 1 January 2014, although it is premature to speculate as to how the Commission's workplace bullying jurisdiction, which has its own specific definition of the concept, will evolve over time. Certainly, it sets a relatively high threshold for establishing workplace bullying, which has the potential to inform the Commission's future approach.

For employers, this case is a reminder that:

  • they can't automatically assume an employee's hurt, embarrassment or humiliation has been caused by bullying; 
  • an employee's own resilience and sensitivity may be a factor in assessing bullying complaints; and
  • a response to a bullying complaint that is too swift can mean that assessment isn't done properly – so don't rush into a decision, particularly if the evidence simply isn't very strong.


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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 communication. Persons listed may not be admitted in all States and Territories.