Bullying by management: How to get it wrong and then get it right

A recent Fair Work Commission decision demonstrates the hurdles for employees seeking orders to stop bullying.

In James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2015] FWC 3538, Mr Willis, a radiographer, accused Capital Radiology’s General Manager and HR Manager of workplace bullying.

Mr Willis complained that the General Manager and HR Manager engaged in unreasonable behaviour by:

  • arriving at his workplace and meeting with him without warning;

  • berating and criticising his performance during that meeting; and

  • commencing a disciplinary process against him.

Capital Radiology had argued in a preliminary hearing last year that the General Manager and HR Manager’s behaviour was reasonable management action taken in a reasonable manner. However, Commissioner Lewin found that Capital Radiology’s concerns with Mr Willis’ behaviour were at best concerns about underperformance, and that the General Manager and HR Manager’s actions were disproportionate and unreasonable to such concerns.

In the final hearing, Commissioner Lewin was satisfied that Mr Willis was subjected to repeated unreasonable behaviour by the General Manager and the HR Manager that was likely to pose a risk to Mr Willis’ health and safety. Mr Willis therefore met the first of two threshold requirements before the Commission can make an order to stop bullying.

However, the Commission must also be satisfied that there is a risk of further bullying before it can make an order to stop bullying. In Mr Willis’ case, a number of events since Capital Radiology’s reasonable management argument was dismissed resulted in Commissioner Lewin being satisfied that there was no further risk. These events included Capital Radiology withdrawing its unreasonable disciplinary process after the decision in the preliminary hearing, and commencing a new process which did not involve either the General Manager or the HR Manager. Commissioner Lewin expressed the view that he could find no fault with Capital Radiology’s current processes, and accordingly Mr Willis’ application was dismissed on the basis that the Commission had no power to make an order to stop bullying.

Lessons for employers

This decision reiterates the difficulty for employees in obtaining an order to stop bullying against the management practices of its employer.

Even though the Commission was satisfied that the General Manager and HR Manager had bullied Mr Willis, Capital Radiology was able to reflect on and improve its handling of Mr Willis’ situation to the Commissioner’s satisfaction.

However, while Capital Radiology was able to avoid an order to stop bullying being made, this matter will have been time-consuming and costly for the organisation.

Employers should reflect on Capital Radiology’s experience by making sure from the outset that they adopt and implement appropriate and fair procedures for dealing with underperforming staff.

This essentially requires four things:

  1. Making sure that staff understand the employer’s expectations.

  2. Training managers on how to appropriately performance-manage staff.

  3. Only adopting written workplace policies for performance-management and disciplinary action that are necessary, appropriate and fair.

  4. Ensuring that managers and human resource personnel obtain impartial legal advice early on when the actions they are taking are challenged or put under scrutiny.

Please contact the Workplace Relations, Employment and Safety team if you would like to discuss any of the issues raised by this Alert.

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