Treatment of employees by an employer or the employee’s co-workers can be a very contentious and emotional issue for workplaces to resolve. The perspectives of an employee and their employer will differ vastly on what is appropriate and inappropriate conduct in the workplace. A recent case Gore [2016] FWC 2559 has addressed the issues of hurt feelings, treatment of employees in the workplace and how these feelings relate to assessing bullying. This article explains the Court’s standing and what procedural measures employers can take in the workplace to guard against successful bullying claims.

Lodging a Claim under the Fair Work Act

The Fair Work Act is one piece of legislation responsible for governing employee and employer relationships. Under s 789FC(1) of the Fair Work Act an employee “who reasonably believes that he or she has been bullied” at work may apply to the Fair Work Commission for an order under section 789FF.

Section 789FF of the Fair Work Act 2009 (Cth) sets out that if

  • an employee or worker has made a section 789FC application; and
  • the Fair Work Commission is satisfied that the employee or worker has been bullied (and that there is risk of ongoing bullying),

then the FWC may make an order to prevent the worker from being bullied. This order must not be an order requiring payment of a pecuniary amount.

Bullying in the Case of Gore

In Gore, the Court discussed that the legislation does “not provide for an applicant’s self-belief or self-conviction, to trump all other factors.” This means that courts are more inclined to take into account the entire picture. How a person feels will not be the dominant consideration.

To make an application in relation to “bullying,” the activity needs to meet the test which is set out in s 789FD of the Fair Work Act 2009 (Cth) and the worker needs to be eligible to make the application:

  • (1) The worker is at work in a constitutionally-covered business,
  • an individual or a group of individuals repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member;
  • and that behaviour creates a risk to health and safety
  • (2) Does not apply to reasonable management action carried out in a reasonable manner.”

As set out in s 789FD(2) “reasonable management action carried out in a reasonable manner does not apply” to s 789FD(1). This section ensures that reasonable requests by management are not considered bullying, as an employee may have their feelings hurt if they do not agree how their role is being managed or the tasks they are being asked to do.

In Gore, the employee felt that she was being bullied by her employer on the basis that:

  • her suggestions were not listened to,
  • another employee was praised rather than her,
  • she was checked on by her supervisor,
  • and other requests were made.

The Court’s approach, in this case, was that the activities did not constitute bullying even though Mrs Gore may have disagreed with some of the decisions and actions that her employer was taking.

The Court also reiterated that “The facts and evidence, in this application, emphasise and reinforce that important distinction Parliament recognised between reasonable workplace conduct and a person having a self-belief or feelings of discomfort. Such self-belief or feelings do not automatically transform into bullying.”

For example, many companies have performance processes which may cause “hurt feelings” in the sense that they may identify areas of work that an employee needs to work on or improvements that they need to make as set out in that business’ performance management process. More broadly speaking it is very encouraged to have a set performance review structure and process in place particularly, where you may be considering terminating an employee’s employment to ensure procedural fairness.

Performance Management

Many workplace policies also have formal procedures for counselling employees, disciplinary procedures and other techniques for performance management which are unlikely to be considered bullying if they are reasonably undertaken.

The case of Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman [2015] FWC 774, addressed how performance issues and sound performance management may indicate permissible treatment in the workplace despite the genuine feelings that the employee. An employee Ms Mac, who had been subject to a Performance Improvement Plan, believed that she was being bullied at work and made an application under s 789FC(1) about this issue.

A Performance Improvement Plan was provided to Ms Mac after her employers had some concerns about how she was performing her role. The Court also discuss that proper performance goals and systems for improvement were a normal and helpful process to improve an employee’s performance (Amie Mac [2015] FWC 774 at 98).
The Court in this case also highlighted some of the behaviour and action that would typically constitute bullying which included the following (Amie Mac [2015] FWC 774 at s99):

  • intimidation
  • coercion
  • threats
  • humiliation
  • shouting
  • sarcasm
  • victimisation
  • terrorising
  • singling-out
  • malicious pranks
  • physical, verbal or emotional abuse
  • belittling
  • bad faith
  • harassment
  • conspiracy to harm
  • ganging-up
  • isolation
  • freezing-out
  • ostracism
  • innuendo
  • rumour-mongering
  • disrespect
  • mobbing
  • mocking
  • victim-blaming and
  • discrimination.

This list does not consist of constructive criticism or feedback being given by the employer. The Court held that the company’s process for performance reviews and techniques as to letting the employee know that they needed to improve were not perfect but that “their conduct constituted reasonable management action carried out in a reasonable manner…did not reach anywhere near the required level of unreasonableness.” (Amie Mac [2015] FWC 774 at 148)

Key Takeaways

As an employer, you cannot please all of your employees all of the time. Different personalities and different styles of communication can lead to workplace issues and yes, even hurt feelings. It is important to have a strong structure and process in place for dealing with complaints and feedback so that your actions are not considered bullying.

When providing feedback to your employees, it is important to have an appropriate performance management system in place to ensure that any feedback and action taken is appropriate management action that will not be considered bullying. As an employer, it is a good idea to have an anti-bullying policy in place so that any concerns about bullying can be easily and properly addressed.

Your Employee Handbook and Employment Agreement should cover these issues so that each employee understands what is expected of them and so that any issues can be dealt with, with less risk of a finding that the performance management was targeted towards anyone employee by another person in a managerial role. If you are an employee who believes they are being bullied but you are not sure whether it would be considered bullying under the Fair Work Act, then you should speak with an Employment Lawyer who can run you through the considerations and your best course of action.

Edith Moss

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