Workplace policies are often treated as administrative documents that sit on a shelf until a problem arises. However, when a dispute reaches the Fair Work Commission (FWC), a court, or an investigative body, those policies can become critical evidence.
Employers frequently rely on policies to justify disciplinary action, performance management decision, workplace investigations, and even dismissals. The difficulty arises when decision-makers either do not understand the relevant policy or apply it in a manner that is unreasonable.
Policies Matter, But They Are Not Enough
Having a well-drafted policy is only the first step. Employers must ensure that:
- key policies are accessible to employees;
- employees are trained on key policies;
- managers understand their obligations under the key policies;
- policies are applied consistently; and
- decisions made under a policy are reasonable in the circumstances.
A failure in any of these areas can significantly undermine an employer’s position if challenged.
Policies can be triggered when dealing with performance issues
A FWC decision regarding Jennifer Watts’ application for an order to stop bullying ([2018] FWC 1455) reinforces each of the bullet points detailed above. The decision reminds HR professionals and managers to understand and apply relevant company policies when handling bullying complaints that arise during investigations into an employee’s performance or behaviour.
The facts
Ms Watts was employed by Ramsay Health Care (Ramsay) as a catering assistant at Glengarry Private Hospital. Ms Watts applied to the FWC under section 789FC of the Fair Work Act 2009 (Cth) (FW Act) for an order against three of her co-workers to stop bullying her.
The bullying behaviour Ms Watts complained of included:
- Her co-workers were 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 the night shift
- Ms Watts' supervisor directed Ms Watts to remove her necklace in front of her co-workers, and singled her out in doing so.
Ms Watts raised these concerns in a written response provided to Ramsay when responding to allegations about her performance and workplace conduct. In that response, she also asked Ramsay to speak to her co-workers and her former manager, who had since left the organisation, to obtain an independent account of the bullying behaviour she said she had experienced.
Despite these requests, Ramsay did not contact the former manager or interview other staff members. Instead, and contrary to its own policy, Ramsay required Ms Watts to provide further specific details before it would investigate her concerns. When Ms Watts did not provide additional information, Ramsay concluded that there were no allegations requiring investigation.
This approach was difficult to reconcile with Ramsay’s Discrimination, Bullying and Harassment Policy, which imposed specific responsibilities on managers, including the obligation to “treat all complaints seriously, investigating and resolving issues in so far as they are able”. The policy also envisaged that employees could raise grievances with their manager, who could assist in facilitating discussions and resolving workplace concerns. Where an informal resolution was unsuccessful, an employee could lodge a formal complaint, preferably in writing.
In the absence of any meaningful investigation by Ramsay, Ms Watts sought assistance from the FWC by applying for orders to stop the bullying. She said the alleged conduct had significantly affected her health. According to her evidence, she cried daily whenever she thought about work, developed neuralgia in her arms, and experienced ongoing stomach complaints as a result of the stress she was experiencing.
In determining the application, the FWC was required to consider whether Ms Watts had been subjected to repeated unreasonable behaviour while at work, and whether the behaviour created a risk to her health and safety. The FWC also had to assess whether any of the conduct complained of constituted reasonable management action carried out in a reasonable manner, which is excluded from the statutory definition of workplace bullying.
The decision
Based on the material before it, the FWC 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
- Some of the instances of bullying could be viewed in isolation as relatively low-level bullyingit was still appropriate to make an order.
- It was appropriate to make an order to prevent Ms Watts being bullied in the future.
Lessons from the decision
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 do the following 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 their performance has been affected by bullying behaviour, 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 underperformance.
- 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 minimise the risk of the employee seeking external assistance to achieve a resolution to their concerns (eg by making an application to the Commission).
Practical Steps for Employers
To reduce risk, employers should regularly review their workplace policies and practices and ask:
- Are our policies current and legally compliant?
- Have employees been informed of and trained on them?
- Do managers understand how to apply them?
- Are policies being enforced consistently across the organisation?
- Does our anti-bullying policy specify what employees should provide in support of a complaint? (for example: dates, who was present, and was was said and done).
- Would our decision-making be viewed as reasonable by an external tribunal or court?
If the answer to any of these questions is uncertain, it may be time for a policy review.
Managers Need Training
Even the best policy framework can fail if managers do not understand how to apply it. Managers are often required to make decisions under pressure and may believe that strict enforcement automatically equates to compliance. In reality, a rigid approach can create legal risk if it ignores context, procedural fairness, or common sense.
Regular training can help managers understand:
- the purpose of workplace policies;
- when discretion should be exercised;
- procedural fairness requirements;
- documentation obligations; and
- the importance of consistent decision-making.
Final Thoughts
Workplace policies can be valuable risk-management tools, but they are not a substitute for sound judgement. Employers who understand their policies, apply them consistently, and exercise reasonable decision-making are in a far stronger position when workplace issues arise.
HintonFlynn Legal advises employers on workplace policies, investigations, disciplinary processes and managing employment risks before they become disputes.
Need advice on reviewing your workplace policies or managing a difficult employee issue? Contact HintonFlynn Legal for practical, strategic workplace relations advice.
Please note: 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.