The Fair Work Commission has set a line in the sand on employers’ obligations to go beyond merely investigating disputes.

A steel mill operator had engaged an external investigator following a dispute between an Occupational Health and Safety (OHS) coordinator and his manager – who accused each other of inappropriate behavior, bullying, victimisation and harassment.

Commissioner Tran found:

• the employer’s failure to implement the investigator’s recommendations meant it had not met its obligations under the terms of its Enterprise Agreement (EA).
• despite the OHS coordinator’s post-investigation resignation, the employer could have done more to resolve the dispute by providing management and/or leadership training to the manager.

AWU requests arbitration

On behalf of the OHS coordinator, the Australian Workers’ Union (AWU) applied to the FWC to arbitrate the dispute, claiming the employer failed to comply with the dispute resolution and settlement terms in the relevant EA.

The coordinator alleged the (environmental) manager bullied him by micromanaging, threats and intimidation. He claimed she had also made vexatious complaints and false accusations, and treated him less favorably due to a disability.

The OHS coordinator pointed to two relevant clauses in the employer’s EA: the dispute settling/resolution and the discrimination, bullying and harassment procedures.

After considering the terms of the EA as they applied to the dispute, Cmr Tran found that while the employer had complied with its obligation to initiate an investigation, it had failed in its duty implement the report’s recommendations – particularly around training and mediation.

Background – he said, she said

About six months after taking up the role, the OHS coordinator sent a letter to another and more senior manager, explaining how he felt “anxious, threatened and intimidated” by his manager.

The letter followed a conversation with the steel mill’s HR partner, including a request for the employer to investigate.

Later, the HR firm also received a letter from the accused manager, detailing her concerns in dealing with the coordinator.

Two weeks on, the employer engaged Ai Group to start an investigation, which substantiated two of six allegations against the OHS coordinator. The one allegation against the manager was not upheld.

However, the investigator found the coordinator did not breach the employer’s Managing Diversity, Harassment & Bullying in the Workplace policy, or the EA Agreement or OHS Act.

The investigator did not consider there were reasonable grounds to initiate disciplinary action against the coordinator or the manager but made several recommendations – including both parties apologising and undergoing facilitated mediation to reset their working relationship.

Consideration was also to be given to a revised training and induction program for the coordinator, with clear guidance about his tasks and possible training on written and verbal communication. For the manager, training on leadership and management was recommended.

In January 2023 – around four months later – the OHS coordinator asked the employer about mediation only to be told the manager refused to participate.

After another six months, a further interaction with his manager left the coordinator again feeling “intimidated, threatened and anxious”. He made a record of the event and spoke to a colleague who made a complaint to WorkSafe on his behalf.

WorkSafe looked into the complaint from July to November 2023, during which the manager was either absent or working from home due to work-related stress and anxiety supported by medical certificates.

On 12 December 2023, WorkSafe wrote to the employer on completion of its investigation – concluding discrimination as defined in s 76 of the OHS Act could not be substantiated.

The regulator informed the employer of no further required action, and that it had written to the complainant with the outcome.

WorkSafe complaint adds fuel to fire

The manager then made further allegations against the OHS coordinator – once again investigated by Ai Group – that included raising his voice to her and refusing to complete work.

Investigation recommendations included that no formal disciplinary action be taken and that the parties attend mediation or a facilitated conversation.

The manager subsequently sent an email to her employer outlining “concerns and unhappiness with respect to (this) outcome”.

She said given no findings of inappropriate conduct against her, she saw no reason to attend a mediation requiring her “to spend more time with someone who had a detrimental impact on her well-being”.

In July and August 2024, the employer had meetings with the AWU.

The union said the employer had failed to discharge its obligations under the EA and that the complaints raised by the manager against the OHS coordinator were vexatious, victimising, bullying and harassment. The manager was also alleged to be unreasonable for refusing mediation.

Shortly after, the OHS coordinator resigned.

‘Investigation alone’ not enough

Cmr Tran concluded only two sub-clauses in the EA “may” oblige the employer to train its employees on rights and responsibilities in relation to bullying and harassment:

“The employee in question made only one formal complaint against his manager via the letter in 2022, this was a complaint to which the EA would apply.

“In failing to implement the recommendations of the December 2022 and March 2024 investigations, particularly in respect of mediation and training, (the employer) did not comply with its obligation to take complaints seriously nor its commitment to maintaining a workplace free from bullying, harassment and discrimination.

“It cannot be enough to say that because an investigation was conducted, that this alone disposed of the company’s obligations.

“While the outcomes did not substantiate discrimination, bullying or harassment, the investigations did make recommendations, particularly mediation and training, that could have addressed the issues between the parties.

“Implementing, or at least genuinely considering the recommendations that arise from investigations must necessarily be within the meaning of the company’s obligations to take complaints seriously and to maintain a workplace free from unlawful discrimination, harassment and bullying.

“It complied with its obligations in (the EA) by initiating two investigations and participating in WorkSafe’s investigations. But it did not fully meet its obligations as it failed to implement recommendations from both investigations, particularly the recommendations about training and mediation.”

Cmr Tran said despite this failure, recommendations regarding the coordinator could not be implemented as he had left the company.  However, a recommendation for the manager to undergo “appropriate leadership and management training” should now be considered.

Implications for employers

This decision indicates the high bar required of employers in dealing with workplace disputes.

It also shows the frustration for an employer who has seemingly done all the right things by engaging an independent external investigator as well as WorkSafe.

High costs would have been incurred across the course of such a long-running dispute.

By finding that an employer cannot claim to meet its obligations under its EA’s dispute resolution term unless it also attempts to implement investigation recommendations, the FWC has crystallised expectations.

Of course, these also depend on the exact wording of the relevant dispute resolution clause.

AREEA’s highly experienced staff can provide training (and/or mediation if appropriate) to help members in this critical post-investigation “implementation” phase. Contact [email protected].