Tackling a bullying claim in your workplace: Do you have to protect an employee against hurt feelings?
The bullying provisions in the Fair Work Act 2009 were introduced in 2013, and give the Fair Work Commission (FWC) the power to deal with anti bullying applications in limited circumstances.
Since the introduction of these provisions, various cases have helped to clarify exactly how they are meant to operate in practice. However, despite such attempts, there is still confusion as to what does and does not constitute bullying in the workplace. Helpfully, a recent bullying case, Gore  FWC 2559 (24 May 2016), provides further clarification on the issue of ‘hurt feelings’.
The relevant background details of that case are as follows:
The application was made by Mrs Gore, a casual receptionist, employed by the Yura Tungi Aboriginal Medical Service in Halls Creek, Western Australia. In the application, Mrs Gore sought an order to stop bullying by three employees - Mr Evans, Mrs Evans and Mrs Chadwick. A summary of the allegations made by Mrs Gore against the three employees included:
- One of the accused employees openly praised another employee in the same role as Mrs Gore, in front of her
- One of the accused employees corresponded with Ms Gore on occasion using what Mrs Gore describes as an impolite tone
- One of the accused employees gave Mrs Gore a “suspicious stare”
- One of the accused employees was quieter and more withdrawn than usual in her dealings with Mrs Gore and acted in a hesitant manner towards her
- One of the accused employees requested that Mrs Gore take more detailed phone messages, and did not make the same comment to the other receptionists
- One of the accused employees asked Mrs Gore whether she was aware of a particular company policy after she did something contrary to it
- One of the accused employees initially ignored Mrs Gore after she called out the accused employee’s name.
Pretty petty, right? But such complaints aren’t uncommon in some workplaces – so what did the FWC decide and what were the key take-homes from the decision? The FWC ruled that the alleged conduct did not constitute bullying. In the ruling, it was determined that an employee’s perspective has to be balanced against the conduct of others, including reasonable management action carried out in a reasonable manner.
The FWC said that “Having a preference about how things should be done…and suggestions not being agreed to by a supervisor, is not bullying. The choice is a matter for the supervisor. An employer gives a supervisor a role and responsibilities. To deprive a supervisor of the ability to carry out their role in a reasonable way… is not a breach of reasonable management action.”
“While Mrs Gore may be sincere in her beliefs and views, the anti-bullying provisions of the FW Act, are to protect bullying behaviour, not substantially a person’s feelings.”
The FWC explained that complimenting one employee in front of another is not bullying; and that seeking a compliment or thank you and not receiving one is not an act of bullying by the other employee.
If you need assistance with managing complaints of bullying in your workplace, or if you would like your bullying policy reviewed, or for your employees to have some training on the subject as a proactive preventative measure, please contact our Employment Law team:
Anna Ford, Senior Associate
Phone: +61 2 9895 9233
If you would like to receive our regular legal Updates, please subscribe here.