A recent decision by the Fair Work Commission (FWC) provides a win for employers and useful guidance to rely on in managing claims of workplace bullying.
The case in question, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson (2016) FWC 5593, looked at a claim of workplace bullying to gauge its authenticity – or if other factors were at play.
Deputy President Sams rejected the employee’s application for orders to stop workplace bullying by her manager. DP Sams found the application actually had little to do with harassment, and more to do with the employee resenting her manager’s promotion, which she unsuccessfully applied for.
In doing so, DP Sams held “the underpinning intent of the Commission’s anti-bullying jurisdiction is to correct behaviour, not to serve as a vehicle for revenge or retaliation.”
Cases like this are all too familiar
The employee claimed she had experienced workplace bullying since 2013, including being overburdened with case work, micromanaged and undermined, humiliated with aggressive instructions and criticism, among other activities.
She pleaded for the FWC’s assistance on the basis her internal grievances had been ignored. The plaintiff sought an apology from her manager and the CEO, asked that all workers undergo anti-bullying training, and pushed for a full review of the company’s bullying policy.
The initial complaints were investigated by the CEO in 2014. Although it was found the manager’s behaviour was reasonable, Metro arranged for the manager to undergo leadership training, external peer supervision and for mediation with the employee. Further, the employee’s request for reduced hours and a change in reporting lines was accommodated on an interim basis, as well as payment for counselling sessions.
What else can you do?
Most employment lawyers and HR professionals will tell you it’s a fine and painful line between workplace bullying and reasonable management action.
In this case, the evidence clearly did not favour the employee’s claims. DP Sams found it was the employee who was behaving unreasonably, finding the internal investigation was sufficient and observed the employee was not prepared to accept any outcome unless it resulted in disciplinary action against her manger.
DP Sams recommended, as an inconsequential matter in this case, that if an employee asserts an internal investigation lacks transparency or independence it is prudent for the employer to engage an independent third party to conduct the investigation.
In this case DP Sams went on to make scathing findings against the employee in a rare and convincing win for an employer. It serves as a reminder that employers need not be hamstrung in lawfully and reasonably directing employees and disciplining them for failure to comply with such directions.
If complaints are made they should be diligently and – ideally – independently investigated in a timely and comprehensive manner, without constantly walking on eggshells. It’s just not conducive to a healthy or productive work environment. Deal with them by exception rather than compromising the culture and engagement of your team as a whole.