By
Gaby Grammeno
Contributor
The worker was employed on a casual basis in the produce section of a shopping mall in Withers, Western Australia.
From her first shift at the workplace, she felt that her supervisor treated her poorly, disregarding her skills and experience and repeatedly training her in tasks she already knew how to do – as she had previous experience working in produce retail – such as how to cut produce, how to receive orders and complete invoices. She formed the view that the supervisor felt threatened that the worker was trying to take her job.
She also believed she was being unfairly deprived of opportunities, and her shifts were reduced. She did not feel confident enough to confront her supervisor, so she told the office manager about her grievances. Some weeks later, she was moved to another section and finally to the front-end checkouts. She took this as retaliation by the supervisor.
By late September 2023, her shifts were further reduced until she had only one or no shifts per week. She applied to the Fair Work Commission for anti-bullying orders against her employer, her supervisor and the office manager.
In mid-December, she was certified as unfit for work due to work-related stress, anxiety and depression.
In the Commission
The worker submitted that the treatment she’d received amounted to bullying, in contravention of s 789FD of the Fair Work Act 2009.
The supervisor’s evidence cast the reduction in shifts and the poor working relationship in a very different light. The worker was no longer rostered onto training shifts because she’d said she didn’t need training. She’d been moved out of the produce section at the supervisor’s request due to the deteriorating working relationship, which the supervisor thought was bad for her own mental health.
A section the worker was transferred to cut staffing hours because it did not run at a profit, and the worker’s high number of unavailable days limited the company’s scope to roster her on during weekdays, given her preference to not work weekends.
Her supervisor gave evidence that all workers were given the same training, and further training was standard where a task had been completed incorrectly, for example, where invoices were not being checked off properly. With the worker, there had been regular cause for such re-instruction.
‘Tone and context is everything’
In considering the case, Commissioner Pearl Lim referred to the words of an earlier FWC decision, that ‘[t]one and context is everything’ in many workplace interactions.
‘In stop-bullying applications, the Commission is often called upon to adjudicate on whether words and messages sent and received at work were innocent, innocuous, offensive, destructive, and so on.
‘Innocent or innocuous words said in a certain context or delivered in a certain tone can send offensive or destructive messages. Offensive or destructive messages can also be coated in innocuous or innocent words or can be delivered in the most pleasant or professional of tones.’
Bullying at work is defined in the Act as repeated unreasonable behaviour that creates a health and safety risk. In applications for stop bullying orders, the Commission must apply an objective test to establish whether there has been repeated unreasonable behaviour: behaviour is unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable.
The importance of tone makes this a difficult task. Unless there is a video or audio recording of the conversation or the exchange occurs in written form, the Commission must base its assessment of the tone and intention on the subjective descriptions given by the respective parties to the interaction.
In the present case, Commissioner Lim accepted that the worker was genuinely upset by what had transpired, and that the company had struggled to deal with the worker’s concerns. The employer’s handling of the worker’s concerns had been ‘clumsy’, and if the company had been more transparent and consultative in dealing with the conflict between the worker and her supervisor, the stop bullying application might not have eventuated. However, the Commissioner did not find that either of the named employees had engaged in bullying behaviour towards the worker.
Moreover, the FWC can only make anti-bullying orders when it is satisfied that there is a risk of future bullying. The employer had taken action to roll out training to all managers and update their bullying and grievance policies. Commissioner Lim said that even if she’d found the worker had been bullied, she would not have been satisfied that there was a risk of more bullying in the future.
The Commission, therefore, dismissed the worker’s application.
What it means for employers
An employee’s distress due to a poor working relationship with a manager does not necessarily translate to a finding of bullying. Nevertheless, employers will be better able to defend themselves against bullying claims if they ensure suitable management training and practices in relation to staff conflict issues.
