What are the risks if my business’ disciplinary processes with respect to employees are less than adequate?
Are the processes that have been put in place, or the way that disciplinary and performance processes are carried out “reasonable”? Could they constitute workplace harassment or bullying?
These issues were recently considered by the Fair Work Commission in the matter of Willis v. Gibson and Capital Radiology.
The matter concerned a radiographer employed at Capital Radiology in Melbourne, who complained that members of management were bullying him “by subterfuge”.
The employer had previously sought orders dismissing the employee’s application under the Commission’s workplace bullying jurisdiction, on the basis that its behaviour constituted “reasonable management action taken in a reasonable way”. The Commission initially refused to grant these orders.
It was alleged that the employer’s General Manager and Human Resources Manager visited the employee at his workplace unannounced and conducted an impromptu interview. They allegedly proceeded to berate the employee and one of the managers appeared to demonstrate “ … amusement at his predicament”. The employee claimed that he felt threatened by this behaviour.
The employer subsequently commenced disciplinary action against the employee.
Commissioner Lewin found that the conduct of the employer’s managers was an “unreasonable action carried out in an unreasonable manner”. The Commissioner found that:
“… a simple and reasonable course of action would have been to advise [the employee] of the proposed meeting and, even if only in the most summary terms, the purpose of the meeting, either by telephone or email, and attempt to explain the expectations of [the employee’s] performance of his duties… in a supportive way”.
The Commissioner noted that the actions of the employer’s managers created a risk of injury to the employee’s psychological health and wellbeing if it continued.
In his decision, Commissioner Lewin made reference to the fact that the employee was new to his job, and was still in a probationary period. The Commissioner considered that because of the employee’s inexperience with the structure of the management at the employer’s clinic, he was unreasonably placed in a “confusing” position.
In order for the Commission to have power to make orders to stop bullying behaviour in these circumstances, it must be satisfied that “ … there is a risk that the worker will continue to be bullied at work by the individual or group”.
Commissioner Lewin also noted that in the immediate aftermath of the incident in question, a “volatile” work environment had been created that put the employee at risk of feeling “humiliated and victimised.” However, the Commissioner went on to find that the behaviour of the employer, following the initial application, had been so exemplary as to remove any such risk.
It was also noted that since this time the employer had gone to some lengths to rectify matters paying “ … careful attention to procedural fairness”, ceasing all disciplinary action swiftly, and suspending the employee on full pay at a considerable cost to the clinic.
On that basis, Commissioner Lewin was not satisfied that there was any level of risk of further bullying being engaged in against the employee and declined making any further orders. The employee’s application was dismissed.
This decision makes it clear that employers should give adequate notice to their employees of any performance related interviews in order to satisfy requirements of “reasonable management action taken in a reasonable way”.
Special consideration should also be given to new or probationary employees who may not yet fully understand the procedures and structure of an employer’s business.
If allegations of workplace bullying are raised, employers should immediately investigate the allegations and ensure that such behaviour is not continuing.
In general terms, if employers have sound policies and procedures in place governing performance and disciplinary issues, it will reduce the risk of substantiated allegations of bullying arising, and external complaints being made.