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Know your policies and avoid being unreasonable

28 March 2018

The importance of knowing, and applying, company policies was made apparent in the Fair Work Commission’s recent decision dealing with Jennifer Watts’ application for an order to stop bullying ([2018] FWC 1455). The decision serves as a timely reminder that HR professionals and managers need to understand, and apply, applicable company policies when dealing with complaints of bullying that emerge during an investigation into an employee’s performance or behaviour.

The facts

Ms Watts is employed by Ramsay Health Care (Ramsay), and she works as a catering assistant at Glengarry Private Hospital. Ms Watts made an application to the Commission under section 789FC of the Fair Work Act 2009 (FW Act) for an order against three of her co-workers to stop bullying her.

The bullying behaviour Ms Watts complained of, included:

  • Ms Watts’ co-workers laughing at a ‘joke’ made by the Acting Boss that an orange pill found in a drawer belonged to Ms Watts
  • a co-worker told Ms Watts’ supervisor on a number of occasions that Ms Watts smelt of alcohol and was intoxicated when she was not
  • two co-workers asked another employee, in a derogatory manner, what it was like to work with Ms Watts on night shift
  • Ms Watts’ supervisor directed Ms Watts to remove her necklace in front of her co-workers, not in private, and singled her out because he did not direct other employees to remove their jewellery.

Ms Watts referred to this behaviour in a written response she provided to Ramsay in answer to allegations that had been made against her regarding her performance and behaviour. Ms Watts also asked Ramsay to speak to her co-workers and her previous manager (who had left Ramsay), to obtain an “independent” account of the alleged bullying she referred to, and had been subject to.

Despite Ms Watts’ requests, Ramsay didn’t telephone the ex-manager or talk to other staff, and contrary to policy, required Ms Watts to provide them with specific details before they could investigate her concerns further. Ms Watts did not provide any further information, and so Ramsay determined there were no allegations to investigate.

Ramsay’s Discrimination, Bullying and Harassment Policy provided that managers had particular responsibilities, including, “Treating all complaints seriously, investigating and resolving issues in so far as they are able”. The policy also provided that an employee could refer a grievance to their manager who could assist in “facilitating” a discussion and/or resolution. If no effective resolution was achieved, the employee could lodge a formal complaint “preferably in writing”.

As Ramsay failed to investigate Ms Watts’ concerns, Ms Watts sought the assistance of the Commission to stop the bullying, particularly as her health had been affected by the conduct engaged in by her work colleagues. In that regard, she told the Commission that she cried every day and this happened whenever she thought about work. Ms Watts also said that she had developed a stress disease called neuralgia on her arms and had stomach complaints.

For the purposes of determining Ms Watts’ application, the Commission had to consider whether Ms Watts was the subject of repeated unreasonable behaviour by an individual or a group of individuals whilst at work, and whether the behaviour created a risk to health and safety. The Commission also had to consider whether any of the behaviour complained of, was reasonable management action carried out in a reasonable manner.

The decision

Based on the material before it, the Commission found that:

  • Ms Watts was bullied at work, and there was a risk that she would continue to be bullied at work
  • the HR Advisor and the manager failed to investigate Ms Watts’ complaints, and their failure to investigate was unreasonable
  • Ms Watts’ health had been negatively affected by her experiences at work
  • whilst some of the instances of bullying could be viewed in isolation as relatively low level bullying, it was still appropriate to make an order to prevent Ms Watts from being bullied at work in the future.

Lessons for employers

Managing and addressing underperformance can be tedious and time consuming. However, if an employee alleges that their alleged poor performance is due to bullying behaviour engaged in by others in the workplace, then be sure to do the following in order to avoid being unreasonable, and losing control of the situation:

  • Listen to the employee, and understand their concerns and reasons for their non performance
  • If the employee alleges that their performance has been affected by bullying behaviour – then investigate those allegations and concerns, ensuring that you comply with any applicable company policies
  • Once you have determined whether the allegations and concerns can be substantiated or not, make a decision about what if any impact, the allegations and concerns have on the management of the employee’s alleged under performance
  • Maintain effective communication with the employee throughout the process to ensure that the employee understands what steps are being taken, and the decisions being made, to avoid the employee seeking external assistance to achieve a resolution to their concerns (eg by making an application to the Commission).

It is also important to review your bullying, discrimination and harassment policy to determine if it needs to be enhanced or updated in the future. Ideally, employees should provide specific details (e.g. dates, who was present, and what was said and done) in support of their allegations. If your policy does not specify what details should be provided, and simply states that all complaints will be investigated, then an employee may be justified in being uncooperative, and could simply refuse to provide further details that could assist the investigation.

Are you trying to manage poor performance or investigate a complaint of bullying at the moment?
If so, don’t hesitate to contact Pamela Flynn on 0420 362 579 or pflynn@hintonflynn.com.au if you need advice and guidance.

The content of this article is general in nature and is not intended to and should not be relied on as a substitute for legal advice which is specific to your circumstances.

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