Workplace Bullying
A recent unfair dismissal case has shed some light on what may be construed as 'workplace bullying', and what is expected of an employer in dealing with such.
Rachel Maye was employed by WorkPac Pty Ltd. After she resigned from her employment, and during an exit interview, she alleged that another employee, Karen Harris, had bullied her throughout her employment.
A few weeks later, Mrs Harris was advised by the Employer that she was required to attend a meeting with management to discuss 'serious concerns' that the Employer had in relation to allegations relating to Mrs Harris' treatment of a fellow team member.
A few hours before the meeting was scheduled to take place, Mrs Harris received an email from management detailing further information regarding the allegations. Soon after, Mrs Harris provided a written response to management. Mrs Harris then attended the meeting with management and her own support person. During the meeting, she denied all the allegations made against her.
At the conclusion of the meeting, Mrs Harris was advised that her responses would be considered and that she was required to attend a further meeting later that day.
At approximately 2:30 pm that same day, Mrs Harris and her support person were called into a meeting. At the meeting, Mrs Harris was advised that her employment was being terminated immediately for bullying Ms Maye, which the Employer considered gross misconduct.
After her termination, Mrs Harris lodged an unfair dismissal claim with the Fair Work Commission.
At the Commission hearing, Mrs Harris submitted that:
- she did not bully Ms Maye;
- the allegations were extremely vague, to the point that many of the alleged incidents could not be recalled by her. The only specific examples related back to July and October 2011, being over 12 months before any complaint was lodged;
- several of the allegations related to a period over 12 months old when Mrs Harris' husband was terminally ill;
- there was no impartial investigation, and the process followed in the investigation was flawed;
- Mrs Harris was denied natural justice in not being given the appropriate opportunity to prepare and respond to the allegations; and
- the Employer's response to the allegations, by dismissing Mrs Harris, was disproportionate and failed to take into account her 8 years of service with no prior warnings.
At the Commission hearing, the Employer submitted that:
- Ms Maye made allegations against Mrs Harris before tendering her resignation;
- Ms Maye resigned from her employment due to the treatment she received from Mrs Harris and that treatment came to the Employer's attention through an exit interview with Ms Maye;
- the allegations were sufficiently serious so as to conduct an investigation that was impartial and conducted promptly, confidentially and objectively in accordance with the Employer's harassment, Unlawful Discrimination and Workplace Bullying Policy;
- the investigation was impartial and conducted objectively by Ms Bowe who is based in Brisbane “and therefore not involved in the day to day contact with the parties involved in the investigation”;
- the behaviours complained of by Ms Maye did occur;
- Mrs Harris was afforded procedural fairness and given a reasonable time to respond and consider the allegations; and
- the Employer considered Mrs Harris' length of service and, in doing so, gave Mrs Harris 5 weeks' notice although not required to do so for termination due to gross misconduct.
The Fair Work Commission found that Mrs Harris' dismissal was unfair, and in making its decision it took into account the following considerations:
- Ms Maye's evidence was that she commenced complaining 18 months prior to handing in her resignation, but the Employer did not act on Ms Maye's complaints until she resigned from her employment; and
- neither Ms Maye nor the Employer could provide any contemporaneous documentation on the incidents and there was no written record of the disciplinary investigation setting out the reasons why the Employer formed the view that Mrs Harris was “guilty of bullying” Ms Maye, and that her employment was terminated “due to gross misconduct”.
In commenting generally on bullying in the workplace, the Commission stated that it should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities - not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is 'guilty of bullying' and 'gross misconduct'.
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