Cooking up a Storm? Workplace Bullying and Investigations

November, 2015

By Clayton Payne, Special Counsel

With time passing, the Fair Work Commission has now handed down a number of decisions concerning its jurisdiction to deal with complaints of workplace bullying.

What has the Commission said about the type of “unreasonable behaviour” that might give rise to a complaint? How should complaints be investigated?

These issues were recently dealt with in the matter of Ms LP.

The Facts

In that case, the worker was engaged in a restaurant in Adelaide and made a large number of allegations in relation to bullying. These included but were not limited to allegations associated with:

The employer contended that the alleged conduct was not bullying, but rather was reasonable management action carried out in a reasonable manner. It also made objections to the complaint on jurisdictional grounds partly because the former head chef no longer worked for the restaurant. The employer claimed that, because of the chef’s departure, there was no further risk of the worker being bullied.

As part of her complaint, the worker alleged that the employer in effect, allowed the former head chef to engage in unreasonable conduct that included comments directed to other staff members such as:

Comments allegedly directed towards the worker and generally included:

The employer submitted that the Commission, in considering the conduct of the former head chef, needed to take into account the busy kitchen environment, and that ultimately the worker was satisfied by his behaviour after the former head chef was counselled by the employer.

Commissioner Hampton was satisfied that the behaviour of the former head chef amounted to unreasonable conduct, and that:

It is also apparent that at the time there were little if any strategies in place to set appropriate behavioural standards and there was no proper mechanism to deal with concerns about such matters”.

In relation to the issue of the worker’s complaints being investigated, the Commissioner went on to find:

It was appropriate that an external investigator be appointed given that allegations had been made, at one point or other against most of the management team in the context of what was a relatively small business”.

The Commissioner found that the worker had been subjected to relevant unreasonable behaviour at work by an individual or group of individuals. That said, the matter was stood over for further submissions as to the orders to be made, noting for example, that the individuals involved in the more serious relevant conduct had left the business, and whether the worker would be returning to work.

Conclusion

This decision highlights several relevant issues and lessons for employers, including:

  1. the type of behaviour that would be considered to be “unreasonable” in the context of a bullying complaint under the Fair Work Act;
  2. the fact that employers should have policies and procedures in place dealing with complaints of bullying (noting in this case that the employer was also described as being a relatively small business); and
  3. that it is appropriate to appoint third party investigators to investigate complaints of bullying, particularly when management personnel are the subject of a complaint.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

 

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