In a rare case of an anti-bullying application reaching the hearing stage, a Fair Work Commissioner has declined to make an order against the manager involved – instead directing the employer pay for the manager and his direct report to attend mediation with an external provider.

Under the Fair Work Act’s beefed-up anti-bullying provisions, the employee applied for a Stop Bullying Order, claiming nine allegations of bullying.

While applications to make these orders are relatively common, bullying cases rarely progress to hearing because the employee generally resigns before the matter finalises.

The Fair Work Commission (FWC) can only make a Stop Bullying order where the bullied worker remains employed by the employer.

Removal of RDO was not ‘bullying’

The employee, an NBN field engineer, alleged he was being bullied by his manager after he (the manager) unilaterally removed his Rostered Day Off (RDO).

The manager claimed the engineer was not working the additional daily hours needed to accrue the RDO, according to the company’s flex work policy. (There is an ongoing dispute in the FWC relating to how travel and work time is calculated for the engineers, so this issue was not dealt with by the FWC in this case).

Commissioner Crawford agreed with the manager that the engineer had repeatedly failed to meet the lawful and reasonable directions required of him in his role and under the policy: that he was to leave home by 6.30am to arrive at his first job by 7am.

After running a time sheet audit on the engineer’s start and finish times, the manager removed the RDO, claiming “100 per cent non-compliance” with the requirement.

Despite finding the manager’s audit contained many errors and was “problematic”, Cmr Crawford noted the action was disciplinary, because it “was an isolated decision to remove the engineer’s entitlement to an RDO due to concerns about his conduct”.

“That is clearly a disciplinary action, akin to deciding not to offer overtime to an employee due to performance issues.

“(The employee was) regularly not complying with the direction to leave home at 6.30am or arrive at his first job site by 7am.

“It appears (the employee) had been adjusting his work hours because he considers NBN Co is unfairly refusing to pay employees for time spent on preparatory tasks each day before they start work. That was an inappropriate and highly risky approach.”

Nonetheless, the Commissioner considered the removal of the RDO on a day in which the employee was entitled to it did not constitute “reasonable management action” – due to the manager’s “frustration clouding his assessment of the employee’s conduct”.

The manager “acted unreasonably in finding that the employee had “breached a policy or direction” concerning the RDO.

‘Orders are not designed to punish bullies’

Cmr Crawford clarified the legislation “is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour.

“It is (therefore) doubtful an order for (the engineer’s) RDO to be reinstated could be made in an anti-bullying matter.”

The Commissioner said:

“There is clearly power to make orders that (the engineer) be assigned a different manager and to have no further contact with (the manager). However, I do not consider (the pair) are incapable of having a professional and safe working relationship.

“I consider (the engineer) and (the manager) will both need to modify their behaviour towards each other to prevent (the engineer) from being bullied at work by (the manager).

“I encourage (the manager) and (the engineer) to approach the mediation in good faith, put the past events behind them, and focus on steps that can be taken to improve their relationship moving forward.”

Implications for employers

This case may set a precedent for FWC orders involving allegations of bullying (unless appealed or distinguished by future decisions).

Despite Cmr Crawford considering the facts of this case were “unusual and unique”, the orders are in line with the FWC’s (and most other courts’ and tribunals’) general policy in pushing parties to resolve disputes – with conciliation and mediation preferred to arbitration or litigation.

There is clearly an additional cost burden for employers defending applications or who choose external rather than in-house resources to try to resolve bullying allegations.

AREEA has many member resources for dealing with bullying – from preventative training at your workplace to mediation facilitators, investigations, employment lawyers and advisers experienced in courts and tribunals.

For further help or information, contact  [email protected].