Background

In B v Park Beach Bowling Club Limited [2017], the Fair Work Commission rejected an application for a stop bullying order on the basis that there was no evidence of repeated unreasonable conduct by the employer.

Facts/Findings

• The complainant was employed as a casual food and bar attendant at a club
• She alleged that the administration and events manager and the CEO had bullied her within the meaning of bullying under section 789FD of the Fair Work Act 2009. She applied to the Fair Work Commission for a stop bullying order
• The bullying related to four incidents, and the findings were as follows:

1. Investigations by the club into complaints from two other employees about the complainant
• There were complaints made against the woman by two other employees involving comments she made about a person’s weight in October 2015, and an allegation that she used aggressive language towards another employee in November 2015
• In May 2016, the woman was told that there was insufficient evidence to substantiate the first complaint. However, an employee who had overheard the comment kept pursuing the matter

• Eventually, in October 2016, the club chairman signed a warning letter which stated that the woman must “show an immediate and sustained improvement… Should this not occur, further disciplinary action may result”. She believed this was bullying
• The Fair Work Commission found that giving the warning months after the woman had made the complaint could not be substantiated was not reasonable management action carried out in a reasonable manner. However, the Commission could not make an order against the chairman as he wasn’t named in her application
• In regards to the second incident, the woman denied using aggressive language and demanded to see the CCTV footage. However, as the CCTV did not have sound, the employer refused as would not be of assistance with respect to what the women had said.. She was issued a warning in relation to this incident. The Fair Work Commission held that denying the woman’s request to see the CCTV footage was not unreasonable.

2. An allegation that the complainant had been spoken to for being rude to another employee
• In December 2015, an employee had spoken abruptly to the woman, to which she replied that there was no need to be “Gestapo-like”
• As the CEO only spoke to the woman, and not the other employee, she felt like she had not been treated in a fair and equitable manner. The CEO apologised and said no further action would be taken
• The Commission held that the employer had not treated the woman unfairly because she had been given an oral warning similar to the oral warning which had been given to the other employee in the past about rudeness.
3. The club conducting an investigation in an unfair manner
• The woman alleged that an investigation undertaken by an external consultant was unfair because she was not given the opportunity to respond to matters in dispute and was denied access to documents
• The Commission held that the woman had been given sufficient information to understand the matters under investigation. On the basis that the investigator had conducted 12 interviews, the Commission was satisfied that the investigation had been conducted in a thorough, unbiased and equitable manner

4. A complaint made by the complainant against another employee
• The woman alleged that another employee aggressively touched her arm when he was walking past as she had raised her hand to explain something to club patrons
• Managers reviewed CCTV footage and did not see any force or aggression. He had merely put his palm out to turn the woman’s hand away so he could pass her.
• The woman’s request to see the CCTV was refused as there was nothing to gain from it
• The Commission held that there had not been any unreasonable failure to provide her with all the relevant information

Fair Work Commission Decision

• In dismissing her application, the Fair Work Commission emphasised that s789FC of the Fair Work Act 2009 requires that the bullying be repeated unreasonable conduct towards a worker
• However, it was found that in the events alleged, there had been no repeat of any unreasonable behaviour towards the complainant
• Whilst the warning letter issued to her by the chairman in October 2016 could be seen to be unreasonable behaviour, it was not classified as ‘bullying’ as it did not involve repetition.

Tips for Employers

• review this Fair Work Commission decision
• Comply with any policies and procedures in the work place concerning bullying
• ensure managers are trained on how address employee complaints in the workplace and that disciplinary action taken against employees is well founded
• raise any employment law questions with an employment lawyer
• ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements

More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.