By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

The Fair Work Commission found that the comments made by the employer and other actions it took did not amount to bullying, but were reasonable management action.

Facts of case

The employee’s application sought payment of her medical expenses and reinstatement of her sick leave entitlement, standing down of the CEO who made the alleged comments, and having the FWC take over management of an ongoing internal dispute process. The comments came after she openly objected to the CEO’s directive that all employees return to the central workplace during the COVID-19 restrictions.

The alleged incidents included the following:

  • Her supervisor publicly ridiculed her and accused her of using “poor theology” after she gave advice to a co-worker. The employee claimed that this was religious discrimination.
  • She berated and humiliated her for raising, in an open-plan office, the possibility of working a four-day week, and told her “loudly” to “drop it”.
  • She claimed she was ignoring one of her work tasks.
  • The CEO mishandled an internal dispute resolution process that followed her complaint of bullying.
  •  She was subjected to micromanagement and “unreasonable” performance management.

The employee claimed that the comments referred to above were made in a calm and quiet manner and were not intended to be overheard.

The employer claimed that the conversations referred to were simply instructions made in a calm manner and that the directive to return to the workplace was made in line with Victorian Government health recommendations at the time. It denied that any bullying occurred.

Decision

The FWC found on the balance of probabilities that bullying had not occurred, and refused to issue a “stop bullying” order. The actions of management amounted to “firm instructions” that led to disagreement but were not disciplinary in nature. Management concerns about not discussing sensitive work matters openly in an open-plan environment were reasonable.

The employee failed to prove a causal link between what happened at work and incurring her medical expenses, or any risk to her health and safety.

What this means for employers

For the FWC to issue a “stop bullying” order, employees need to establish a link between “bullying” and detrimental effects on their health and safety. The FWC will make its decisions based on the balance of probabilities (whether bullying has occurred and is likely to continue).

Read the judgment

Margaret Trainor v Council for Christian Education in Schools and others [2023] FWC 1272 (30 May 2023)

Mike Toten

Freelance Writer

Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management