By Gaby Grammeno Contributor
The worker had been employed as an Advanced Life Support Paramedic in a town in north east Victoria since 2009. In 2021, after an investigation substantiated allegations of serious misconduct involving the bullying of a co-worker, his employer imposed disciplinary action against him.
The disciplinary measures included a first and final warning, education and training, and transfer to a work location in a Melbourne suburb, 350 kilometres from his home. Transfer to a different work location was one of the options listed under ‘Restorative practices’ in the Ambulance Victoria Enterprise Agreement 2020.
The worker accepted the findings of the investigation and the warnings and requirement for education, but he disputed the organisation’s right under the circumstances to remove him from the locality where he’d built a life, friendship and community, and took his dispute to the Fair Work Commission.
In the Commission
The worker was the subject of six allegations concerning his bullying of a fellow employee. The investigation into his conduct had substantiated three of the allegations and partially substantiated another two.
The worker did not dispute that he’d engaged in bullying his colleague, but argued that his behaviour towards her was not wilful or deliberate, accepting instead the findings of the investigation that he was ‘socially inept’ and ‘may have treated everyone badly’.
He submitted that the investigation had not found his conduct ‘inconsistent with the continuation of the employment relationship’, or that there was ‘an imminent risk arising from his behaviour’.
He claimed his treatment of her did not amount to serious misconduct, bullying or harassment as defined in the Enterprise Agreement, and that Ambulance Victoria had acted unreasonably or unjustly in deciding to transfer him to another work location.
He also claimed the employer had taken irrelevant information into account, that his responses were not considered and that the decision to transfer him so far from his home, family and support network was unreasonable.
The Commission’s task was to answer four questions:
- did the worker’s conduct meet the definition of workplace bullying and harassment under the Fair Work Act 2009 or the Equal Opportunity Act 2010 (Vic)?
- had the employer acted unreasonably or unjustly in the circumstances in imposing a transfer on the worker?
- did the worker have access to the dispute resolution procedure set out in clause 37.2 of the Agreement?
- if the answer to the third question was ‘Yes’, was the worker’s transfer unreasonable having regard to his personal and family circumstances and the requirement for excessive travel to attend work?
Commissioner Scott Connolly heard evidence that the paramedic was generally ‘rude, had ‘always been like that’ and ‘does not respect women very much’. He concluded that the worker had often ignored his co-worker’s greetings, did not engage in conversation with her, acknowledge her work or exchange pleasantries with her.
The evidence was that from 2019 to 2021 the paramedic had failed to treat her ‘with courtesy, civility, respect and dignity, belittled her contributions and failed to create a safe, encouraging, supportive and respectful environment free of discrimination, harassment and bullying’.
Commissioner Connolly found that this was bullying behaviour as defined in the Agreement, and that it was reasonably open to the employer to take disciplinary action to address the findings of the investigation.
He accepted Ambulance Victoria’s argument that serious misconduct did not have to be wilful, and found it ‘implausible’ that bullying would not amount to serious misconduct.
With regard to the worker’s claim that the transfer was unreasonable because it was so far from his home, Clause 37.2 of the Agreement provided that where an employee believes a transfer is ‘unreasonable having regard to the employee’s personal and family circumstances and the requirement for excessive travel to attend work’, the employee may raise a grievance against the transfer.
On examining the context of the provision, Commissioner Connolly concluded that Clause 37.2 applied to transfers resulting from resource allocation decisions, not to transfers arising from disciplinary decisions.
The Commissioner found, therefore, that the Enterprise Agreement did not entitle the worker to raise a grievance about the transfer, and dismissed his application.
What it means for employers
The case highlights the scope for employers to take disciplinary action in response to sustained rude, disrespectful, bullying behaviour, provided the organisation’s policies, agreements, procedures and other such documents specify what is defined as unacceptable conduct and the employer’s options in dealing with it.
