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Common Sense Prevails in Fair Work Commission Bullying Decision

By Michelle Morton

23rd August 2016

A recent Fair Work Commission decision in relation to an application for an order to stop bullying should provide some reassurance for employers that the Commission is willing to draw a distinction between reasonable workplace conduct and a person having a self-belief of being bullied or feelings of discomfort.

Ms Gore was employed by the Yura Yungi Aboriginal Medical Service in Halls Creek and had lodged an application for an order for three of her work colleagues (one of whom was the practice manager) to stop bullying her.

The conduct complained of included:

  • A “suspicious stare”;
  • One employee “checking up on her”;
  • One employee complimenting another work colleague, but not complimenting Ms Gore;
  • Ms Gore’s manager:
    • not dealing with a problem when Ms Gore raised it with him because he was pre-occupied with other tasks;
    • not taking up her suggestion for improvement;
    • telling her to return to work because reception was left unstaffed;
    • asking her if she had read a workplace policy and was aware of the usual procedure after she had not followed it.

In declining to make the orders sought Commissioner Cloghan found that the conduct complained of did not constitute bullying and that one incident was “too petty to record in any further detail and does a disservice to the definition of being bullied at work”.

In relation to the clinic manager, Commissioner Cloghan found that a manager should be given latitude to inform staff on how to do their job as and when particular issues arises; that staff suggestions are a matter for the manager to adopt or otherwise; and that as Clinic Co-ordinator, the manager was best placed to instruct a staff member on how to avoid patient overload.

In considering whether the manager’s conduct in refusing to deal with an issue brought to him by Ms Gore because he was pre-occupied with other issues, the Commissioner stated: “While ‘managing upwards’ is a common feature of the workplace, it should be done with deftness. When ‘managing upwards’ is met with resistance by a supervisor, an employee should not consider it ‘disrespectful’. For Ms Gore to consider such as situation as ‘disrespectful’ is to turn an organisation’s hierarchy on its head.”

The Commissioner went on to express the view that sometimes employees are just overly sensitive when they see a pattern and stated that the anti-bullying provisions of the FW Act are to protect bullying behaviour, not substantially a persons’ feelings.

In dismissing the application, the Commissioner concluded that if the Fair Work Commission adopted the expansive view of bullying contended by Ms Gore, “reasonable workplace behaviour and reasonable management action would cede to a person’s feelings of being anxious or uncomfortable.”

This case provides an insight into the Commission’s approach to reasonable management action and reassurance that frivolous claims by overly sensitive employees are unlikely to gain traction so as to interfere with an employer’s right to reasonably manage employees and the workplace as they see fit.

For assistance in relation to any workplace issues, please contact Michelle Morton.

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