The FWC is highly critical of an employee who attempted to use FWC ‘stop bullying’ provision as a shield.
The anti-bullying provisions of the Fair Work Act 2009 were established to prevent harm caused by workplace bullying by providing “a quick and cost-effective remedy to individuals”.
According to Bill Shorten, the Minister for Employment and Workplace Relations at the time the provisions were introduced, they “encourage early intervention to stop the bullying, to help people resume normal working relationships, and to prevent further episodes of bullying in the workplace into the future”.
At the time the legislation was introduced, employers were concerned by the potential for the jurisdiction to be misused by workers to fetter management prerogative in their lawful and reasonable dealings with their workers. In Tanka Jang Karki , deputy president Sams of the FWC confirmed employer concerns were warranted and have materialised, noting that employees are increasingly filing stop bullying applications for an “improper purpose… as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance.”
Mr Karki was a bellman at Star City Casino (The Star). He alleged that the four incidents below amounted to bullying by The Star and the front office manager, Ms Sykes, and applied for a stop-bullying order from the FWC.
- The driveway incident
On 27 August 2018, Sykes arrived at The Star in an Uber and saw Karki on his mobile phone whilst on duty, contrary to The Star’s mobile phone policy. Karki claimed Sykes yelled at him for using his phone, which was “a kind of threat” that publicly embarrassed him and constituted both abuse and harassment.
Further, he alleged that because she was not on duty, she could not enforce company policies. To counter the allegations, The Star tendered CCTV footage that evidenced Sykes had not yelled at Karki or otherwise been loud or aggressive.
- First meeting
On 30 August 2018, Sykes arranged a meeting with Karki to discuss the mobile phone incident. During this meeting, she raised other issues such as Karki not smiling or interacting with guests or demonstrating ‘Star quality’. He claimed that this amounted to harassment as he was being treated differently to others.
- Second meeting
On 3 September 2018, Sykes informed Karki that there would be a meeting to discuss the CCTV footage in relation to the mobile phone incident. Karki believed this constituted further intimidation by Sykes as she was not his supervisor.
At this meeting he received his first written warning for breaching The Star’s mobile phone policy. He claimed this was unreasonable, unjustified and constituted inappropriate management action that needed to be withdrawn.
- The spitting incident
On 30 December 2018 – after Karki had made his stop bullying application – he got a final written warning from the general manager, Mr Cameron, who saw Karki spitting in a rubbish bin in one of the casino’s public areas. CCTV footage confirmed that he spat in the bin three times.
Karki claimed that he did so due to bleeding gums and the fact that nearby construction was creating dust. Further, as there were no policies or warning signs against spitting, he believed he was being “specifically targeted” as a result of his stop bullying application. No evidence was tendered in relation to the alleged gum problem or that he sought dental or first aid assistance in relation to these.
According to the FWC, the actions taken by The Star and Sykes constituted reasonable management action carried out in a reasonable manner and therefore Karki could not have been “bullied at work”. In a reassuring judgement for employers, deputy president Sams said:
“Any employer which has concerns about an employee’s conduct and is able to prove that conduct occurred (as here by the CCTV footage and Mr Karki’s own admissions) is perfectly entitled to conduct a disciplinary process and make a disciplinary outcome. In the case of The Star’s policies and procedures, The Star has a comprehensive and detailed regime for dealing with such matters and ensuring fair and reasonable outcomes.”
He was highly critical of Karki’s failure to utilise The Star’s “comprehensive and detailed” anti-bullying regime. He stated that the Commission would not normally intervene in a bullying grievance unless the employee had “initiated and/or completed” the internal process, particularly if the company “has a comprehensive and commendable bullying policy applying to its workplace”. He noted this is a matter he must take into account under the Fair Work Act.
Further, Karki’s abuse of the bullying jurisdiction was criticised by the Commissioner who found:
- he presented evidence that was “fanciful or implausible and for the most part entirely made up” and “according to his own narrative, which was far removed from reality”;
- he made submissions in relation to the spitting that were “nonsense… one does not need a policy, or direction that you do not spit in a public area at a venue such as The Star… while on duty, or otherwise”; and
- the application was contrary to the anti-bullying legislation’s purpose of protecting against harm as “he had produced no medical evidence of being harmed by any of [the alleged] incidents. His only evidence to this effect was his claim that he was taking sleep medication.”
Not good enough
The Commissioner stated, “it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s ‘stop bullying’ provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.”
With decisions like these, employers with well documented policies that they promulgate and procedures that they meticulously follow may proceed with a level of confidence that they can defend stop the bullying applications that are brought without proper justification.
Employers are entitled to organise their workplaces, counsel and discipline their employees in accordance with their operational requirements, policies, values and directions that they lawfully and reasonably issue to employees. Employers demonstrating that their actions are reasonable (and taken in a reasonable manner) can successfully defend any such application and should not be hamstrung in their management of employees under threat of such claims.
Fay Calderone is a partner at Hall & Willcox.
Learn how to manage problematic workplace behaviour with this Ignition Training course ‘Bullying and Harassment’.