It’s a familiar story with a twist at the end. A recent decision of the Fair Work Commission (the “FWC”) is a pertinent example of how workplace disputes can arise with both a manager and an employee contributing to the resulting workplace bullying.
Background
The case involved an employee who made an application to the FWC for a stop bullying order. The employee alleged nine instances of bullying by the employee’s manager. The claims of bullying included the manager:
removing the employee from the rostered day off (“RDO”) roster after the manager claimed the employee was not working the required number of hours;
accusing the employee of breaching company policy or directions in relation to taking a rostered day off;
preventing the employee from taking periods of annual leave; and
alleging the employee did not respond to a call out because he was at a barbeque.
The manager attempted to manage the employee’s performance and attitude, but the employee was resistant to following the manager’s instructions. The manager tightened the reins and looked more closely at the employee’s work to ensure he was working as directed.
Leaving aside an objective assessment of the situation, the employee clearly felt the manager’s conduct was unwarranted and unfair. This view was only reinforced by attempts to point out the correctness or authority of the manager, adding to a cycle of frustration for both manager and employee.
Of the nine instances of bullying alleged by the employee, the FWC found that in two instances, when viewed objectively, the manager’s conduct was unreasonable and therefore constituted workplace bullying.
In the other seven instances the manager had engaged in reasonable management action carried out in a reasonable manner. However, the FWC commented that there were certain shortcomings in the manager’s approach which came close to resulting in the reasonable management action not being carried out in a reasonable manner.
As such it was appropriate to make stop bullying orders. The employee sought the following stop bullying orders:
the employee be assigned to an alternative manager;
the manager have no further contact with the employee;
the employee’s RDO roster be reinstated; and
a written warning from 5 March 2025 be withdrawn.
The stop bullying orders
Despite finding that two instances of bullying had occurred, and there was an ongoing risk of the employee being exposed to bullying by his manager, the FWC did not make the requested stop bullying orders.
When determining the appropriate stop bullying orders, the FWC noted that the circumstances of the case were “unusual and unique”, although many experienced managers may say the opposite.
The FWC observed that while it found the employee was bullied at work by the manager, this did not occur in a vacuum and, in fact, the employee had on several occasions acted unreasonably towards the manager. The FWC was of the view that a lot of the employee’s concerns or complaints could have been resolved had he amended his own behaviour.
In relation to the orders requested to be made by the employee, the FWC commented that “the legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour”.
The FWC confirmed that if it is satisfied that bullying has occurred, and there is a risk of it continuing, then it has the discretionary power to make any order it considers appropriate. Given that both the manager and the employee both contributed to the breakdown of the working relationship, they also both had cause to reflect on their behaviour. The FWC formed the view that it should be possible for them to have a professional and safe working relationship, and so ordered that they participate in an external mediation within 30 days to be paid for by the employer.
The order is somewhat surprising given it was not an order sought by the employee, and shows the extent of the FWC’s powers in relation to stop bullying orders.
