FWC says words could have been chosen more carefully but comment doesn’t amount to bullying or sexual discrimination.
As a rule of thumb, you should always avoid calling an employee names during a performance management meeting. To most, that’s probably as obvious as saying, ‘You should wear shoes to work’. But when emotions are high the most basic rules of conduct can fall to the wayside.
A new case overseen by the Fair Work Commission (FWC) saw a senior management figure label a more junior employee a ‘big, threatening, scary man’. Although it may not seem like it, this case actually highlights an organisation that’s done a good job of handling an employee accusation of workplace bullying – despite the senior leader’s offensive comment.
More to the story
While the employee – a ranger at Parks Victoria with nearly 20 years’ tenure – took issue with the comment made by a regional director, it’s his direct supervisor that he took particular issue with; their long, tense relationship caused the ranger to apply for a stop bullying claim.
After being confined to office based-work following a workplace injury in 2015, the ranger was having trouble meeting his performance benchmarks and was placed on a performance improvement plan in 2015 by his then new supervisor.
The FWC heard that the pair’s relationship was rocky from the start. Communication between them was often terse and abrupt, and their ability to cooperate deteriorated over time. Both told the FWC that this had impacted their mental health.
Since then, the supervisor has made a string of complaints regarding his supervisor’s behaviour towards himself and other staff members, which the FWC felt were “investigated but not substantiated”.
The ranger claimed his supervisor denied his preferred support person during meetings, that he was often “set up to fail” and that he’d been reprimanded for asking park visitors general compliance related questions, such as if they had cats, dogs or firearms on their persons.
The ranger also claimed his complaints received no response from management. While he was able to supply some evidence from former and current employees, the FWC felt what was presented was not compelling enough.
It found the employer had nominated a suitable third party to be present for certain meetings, that the supervisor was not trying to set the ranger up to fail and that the ranger was not authorised to conduct compliance screening of park visitors – there were trained and authorised officers for that.
Commissioner McKinnon was also satisfied with the evidence presented by Parks Victoria showing that the ranger’s various complaints had been actively addressed over a three-year period.
“[Parks Victoria] carried out internal and external investigations, undertook a ‘health check’ process to understate the wellbeing of its affected employees, offered to provide coaching, mentoring, training and mediation or facilitation for [the ranger] and [the supervisor] as well as gave direct responses to a number of questions asked.”
This case highlights the importance of treating every employee complaint seriously and taking detailed notes at every stage of a complaint process.
With all this in mind, Commissioner McKinnon came to the conclusion that the ranger’s claims were either unproven, did not constitute bullying or felt the management response was appropriate.
McKinnon noted that while some of Parks Victoria’s actions could have been perceived by the ranger as an attempt to deflect blame, its actions – which included skills training, informal conversations about appropriate workplace behaviour and more formal feedback in annual and mid-year reviews – were justifiable.
A side note
The ranger made a wider claim, accusing Parks Victoria of fostering a bullying “epidemic” and a pattern of bullying against him.
He said the organisation’s regional director had discriminated against him based on his sex for making the comments about him being “big, scary and intimidating”.
Commissioner Sarah McKinnon found that while the regional director’s comments “could have been more carefully chosen” and could be considered offensive, they weren’t discriminatory.
“Simply describing someone by reference to their sex is not discrimination. The concept requires more – including that it involve some less favourable treatment of the person due to their sex or characteristics generally connected to persons of that sex,” says McKinnon in the FWC decision.
“No such less favourable treatment is apparent in connection with the comments made by [the regional director]. For example, I do not accept that in society, men are generally considered ‘big, threatening and scary’ or that [the regional director] was stereotyping [the ranger] or otherwise treating him less favourably than those without the characteristic of being male.”
The purpose of a stop bullying order
While the ranger had claimed the manager was guilty of bullying several other staff, and so should be stepped down from their role, Commissioner McKinnon stated she couldn’t support this because those potentially bullied employees weren’t brought forth as witnesses and Parks Victoria had appropriately separated the ranger and his supervisor.
“This appears to have had the desired effect of eliminating the conflict between them. There is accordingly no apparent future risk of bullying of the type alleged by [the ranger],” says McKinnon.
The FWC has various powers to restore productive workplace relationships, including implementing a stop bullying order. To determine if an employee is being bullied two points have to be considered:
- A person (or group of people) experiences repeated unreasonable behaviour from another individual or group. The key words here are ‘repeated’ and ‘unreasonable’.
- If the above is proven, the second factor is whether the behaviour has an ongoing affect on the individual or groups’ physical or mental health and safety in the workplace.
So, even if the ranger was able to prove the first point, he would have hit a roadblock at number two because the employer separated the two employees to ensure no ongoing damage would occur.
Stop bullying orders do not include financial penalties or compensation. Instead, they require non-compliant employers to create proper standards or policies to rectify the behaviour; to change the working arrangements of those involved (moving the parties to separate parts of the business or rostering them on at different times, for example); or to set up training for non-compliant employees.
In this particular case, Parks Victoria ticked all of these boxes without requiring FWC intervention.
While it’s possible there is more to this case than meets the eye, it does act as a good example (barring the comments from the regional director) of how effective record keeping, proactive measures and timely responses regarding conflict can save you in the long run.
If your organisation needs assistance on how to effectively manage workplace bullying, AHRI’s short course Bullying and Harassment will arm you with useful tools.