Abusing the process – can “stop bullying” orders thwart disciplinary action?

The Fair Work Commission has recently criticised a worker who made an application to stop bullying “as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes”, calling it “perilously close to an abuse of process”.1 

Since 1 January 2014, the Fair Work Commission has had jurisdiction to hear applications for stop bullying orders, with the Commission able to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent a worker from being bullied at work by an individual or group. 

According to section 789FD Fair Work Act 2009, a worker is bullied at work if, while the worker is at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.  However, the Act provides that reasonable management action carried out in a reasonable manner does not constitute bullying behaviour.

In the May 2019 decision of Tanka Jang Karki [2019] FWC 3147, the Commission refused the application for stop bulling orders with the following background.

Mr Karki was employed as a bellman at Star City Casino in Sydney and was responsible for greeting guests and directing them around the Casino.  On 27 August 2018, Mr Karki was observed in the Casino’s driveway by a manager, using his personal mobile phone while on duty.  Such use was contrary to the Casino’s policies and procedures.  This resulted in a disciplinary meeting and a written warning to Mr Karki.

A month later, Mr Karki filed an application for an order to stop bullying.  Mr Karki alleged he was bullied by the manager who he said, had publicly abused, embarrassed and harassed him.  He also argued that the written warning he had received, was unjustified and constituted inappropriate management action. 

Mr Karki had not, prior to filing the application in the Commission, lodged any complaint about the manager or the Casino in accordance with the Casino grievance policy.

The Casino stated in its response to the application that the single instance of alleged bullying was not sufficient to qualify as repeated behaviour required to meet the definition of bullying in section 789FD of the Act.  Subsequently however, at the hearing held in the Commission in February 2019, Mr Karki provided evidence of several other instances of alleged bullying that had occurred since filing his application.  One of these was that, after he was observed spitting into a lobby bin three times, he was targeted and reprimanded unjustly by then being given a final warning.  

When questioned about his spitting, Mr Karki gave as excuses, that he had a toothache and bleeding gums, construction work being undertaken in the Casino made the air dusty, and there were no signs to say that spitting was not tolerated at the Casino.

The Commission concluded that Mr Karki was disciplined in accordance with reasonable management action taken in a reasonable manner.  The Commission held that the bullying complaint was “fanciful or implausible”, “entirely made up”, and “ridiculous”.2  The Commission stated:

“This has been a strategy to file a stop bullying application as a deflection, or diversion, or event to overturn a justified disciplinary action or a legitimate performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance.  This case is an obvious example of this improper purpose.”3

Lavan comment

When considering applications for stop bullying orders, there are some threshold requirements that any bullying application needs to satisfy.  The Commission’s decision is a clear signal that frivolous claims will not be tolerated, with all alleged conduct being rigorously and objectively assessed against the legislative requirements, particularly what constitutes bullying behaviour.

Employers should ensure they have simple but effective policies that clearly set out both the process to be followed when disciplining an employee, and the process for employees to file a complaint internally.

If you have any questions regarding bullying or the disciplinary process or would like to update your business’ bullying, harassment or disciplinary policies, please contact Lavan’s Employment and Safety team.

AUTHOR
Charmaine Tsang
Partner
AUTHOR
Ian Curlewis
Partner
AUTHOR
Michael Jensen
Senior Associate
AUTHOR
Steve Bowler
Senior Associate
SERVICES
Employment and Safety


FOOTNOTES

[1] Tanka Jang Karki [2019] FWC 3147, [66].

[2] Tanka Jang Karki [2019] FWC 3147, [68] to [69].

[3] Tanka Jang Karki [2019] FWC 3147, [67].