Allegations of bullying in the workplace are increasingly common. However, such allegations do not always meet the threshold test of bullying as generally applied to workplace situations.
A recent decision dismissing a school cleaner’s application for stop bullying orders against a fellow cleaner provides guidance as to this threshold.[1]
To make a stop-bullying order, the Queensland Industrial Relations Commission had to be satisfied that:
Although the test was the application of sections 272 and 275 of the Industrial Relation Act 2016 (Qld), sections 789FD and 789FF of the Fair Work Act 2009 (Cth) (FW Act) are similarly worded.
Background
The applicant and the respondent were employed by the Queensland Department of Education as school cleaners. The applicant sought ‘stop bullying’ orders against the respondent. To be successful the applicant needed to provide evidence acceptable to the Commission about the alleged bullying.
The Decision
The applicant told the Commission that on a particular occasion, the respondent yelled at the applicant for not picking up a jacket that was lying on the floor. The Commission found that this was unreasonable and was an ‘excessive reaction to a minor incident involving a mistake by the applicant' and that the respondents conduct was ‘symptomatic of the intense personality conflict between the parties’.
A conversation was also referred to in the evidence between the respondent and another colleague in which the respondent described the applicant as a ‘f**king b*tch'. The Commission said that was not evidence of unreasonable behaviour, but rather an ‘environment in which commentary and gossip is repeated inappropriately to co-workers contributing to a cyclone of drama in the workplace'.
The Commission also heard evidence from two witnesses that the applicant was ‘manipulative and twisted circumstances to accuse others of bullying’ and that ‘everyone is scared of the applicant because she had written stuff down, taken pictures, made a case about pretty much everybody’. In relation to all of the applicant’s evidence, the Commission formed the view that the applicant was ‘prone to exaggeration and held a vengeful rather than fearful view of the respondent'.
Based on the evidence, the Commission found that only the jacket incident was unreasonable. This was however a single event. The Commission was thus not persuaded that the respondent had engaged in repeated unreasonable behaviour towards the applicant.
The Commission found that any risk to the applicant’s health and safety was ‘likely a result of [her] perception of being bullied and the ongoing tension between the parties, rather than objectively unreasonable conduct'.
As a result, the Commission did not find that the applicant had been bullied at work and the application was dismissed.
These proceedings highlight that irrespective of whether conduct amounts to bullying, employers should adopt a best-practice approach to conflict resolution by taking reasonable steps to mitigate and resolve conflict in the workplace. The Commission in this case commended the employer for its steps taken to resolve the conflict between the two employees.
Lavan Comment
Conflict in the workplace can lead to a loss of productive worktime for employees and management. Proactive and reactive strategies can be implemented in the workplace to minimise such loss. Lavan can assist with reviewing and upgrading your current strategies for this purpose.
CASE ALERT: Public Holidays To Be Reviewed By The High Court
A recent decision with onerous implications for employers requiring work to be performed on public holidays is on appeal to the High Court.
The Full Court of the Federal Court of Australia considered whether OS MCAP breached section 114 of the FW Act by requiring, and not requesting, its employees to work on public holidays.[2]
Section 114 of the FW Act permits an employer to request an employee to work on a public holiday. A request can be refused if the request is unreasonable or if the employee’s refusal is reasonable. The Court accepted that a request is distinguishable from a requirement, as the former leaves the employee with a ‘choice as to whether or not to do the thing', while the latter leaves the employee with no opportunity but to comply.
OS MCAP’s employment contract stipulated that an employee ‘may be required to work on public holidays’. The Court found that this, absent any positive request, constituted a requirement and therefore breached section 114 of the FW Act.
The decision has significant implications for employers requiring employees to work on public holidays and places additional requirements on employers to enable this to occur without breaching the FW Act.
If you would like to know more information about these topic, please do not hesitate to contact Lavan’s Employment, Safety and Education team.
[1] Mcatee v Holt [2023] Q1RC 125
[2] Construction, Forestry, Maritime and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51
