If a worker wants to make an application for a stop bullying order, there are a number of hurdles they must jump. The first one is that a worker must “reasonably believe” that they have been bullied at work.
This issue of reasonable belief was the central issue for the Fair Work Commission (the “FWC”) in a recent stop bullying application.
The employee believed…
The employee believed that he had previously been subjected to unsubstantiated allegations of misconduct from a previous department’s “toxic” workplace. The employee described having trauma from the process and that he was still working through these issues while working for a new department.
The employee contended, amongst other things, that the new department placed him on forced part-time arrangements against both medical advice and his preference for full-time work. He also argued that the new department engaged in a “deliberate, coordinated strategy of administrative persecution, psychological warfare and financial sabotage”.
The new department had sought to manage the employee’s performance and attendance by placing the employee on a performance improvement plan and directing him to submit manual timesheets and formal leave requests as a condition of being paid. The employee had a serious emotional reaction (including taking nine weeks of leave) to the performance improvement plan and claimed that this process was being used by the new department to punish him.
After failing to comply with submitting manual timesheets, and not receiving payment of his salary, the employee applied for a stop bullying order to be made against the new department.
But was this reasonable?
The FWC found that all of these serious allegations were without a reasonable basis. The FWC found that:
when he joined the new department, the employee’s new managers had offered him relevant support;
the part-time arrangements were in response to the employee’s doctor, and an independent medical examiner, advising that there be a graded return to work starting at three days a week;
after a review, which clarified that the original medical reports did not limit the employee’s capacity to work full-time, the employer subsequently lifted the restriction with a recommendation for consultation on any necessary or appropriate remedies;
while the employee’s interpretation of the medical reports was correct, the FWC found that the reports lacked clarity which explained the employer’s decision; and
the direction to submit manual timesheets and formal leave requests were objectively reasonable in the circumstances.
The FWC said that “considerable care was taken in dealings with [the employee] to provide relevant support while also seeking to manage his employment, as the Department was both entitled and required to do. Those efforts were generally rebuffed or objected by [the employee] in lengthy correspondence that sought to entrench him in the position of victim and avoid taking responsibility for his own contribution to the circumstances he faced.”
In reality the employer, and new department, demonstrated considerable care. The FWC determined that the employee was not entitled to apply for orders to stop the alleged bullying.
Takeaways for employers
Whether an employee holds a reasonable belief that they have been subjected to workplace bullying will depend on the circumstances. But it is also something that the FWC will determine objectively. And in this case, objectively, the beliefs held by the employee were not reasonable beliefs.
The key issue for the employer was the ability to show that the employee’s belief was not reasonable. After a failed conciliation with the FWC, the employer agreed for the matter to be dealt with by the FWC. The matter was dealt with on the papers (which meant that there was no in-person hearing). Pivotal to this would have been the employer’s ability to present a case based on detailed records of the actions that had been taken. It’s a particularly important reminder for employers to keep detailed records of conversations, communications, decisions made and processes followed when dealing with complicated workplace matters.
