Introduction

For those of you who have been following my reports for some time, would know that the “Anti-Bullying” provision under the Fair Work Act are as useful as an ashtray on a motorbike. The no-win, no-fee lawyers cannot monetise this provision, so bullying applications rarely get to a full arbitration. This is because the only outcome (as should unfair dismissals) is for the Fair Work Commission to issue a “Stop Bullying Order”.

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Full decision here.

Background

The applicant is a park ranger with the respondent. Over a period, the relationship with her Team Leader has descended to a point of purported unhealthy tension. In the eyes of the applicant, the relationship is punctuated by incidents of condescension, disparaging remark or action, name calling, the assignment of meaningless tasks, and aggression. Similarly, the tram leader is aggrieved by the conduct of the applicant and whilst she lodged a complaint with her employer, her preference was to leave it at that.

Following the anti-bullying application, the employer engaged independent consultants to investigate the allegations. The applicant was not happy with the investigation process. In any event, the investigation concluded that no bullying had occurred.

The CEO decided to change the reporting relationship to assist the applicant.

According to Her Honour, the CEO presented as a rational and empathetic CEO, with a good measure of pragmatism. He explained that the employer owned, and, together with the Department of Biodiversity, Conservation and Attractions, co-managed a national park, comprising 4,913 hectares of land. It employed a team of rangers known as Land and Sea Unit, who together fulfilled the employer’s work in managing country, land and sea, including culturally significant sites. With candour, the applicant traversed the workplace cultural problems he considered existed with the employer, noting that at the time of hearing the employer was in the process of engaging a legal firm to come in and provide a strategic overview with a view to fixing the culture in the organisation.

HR Nightmare

There an old saying “if you want to lose a friend, give them a job”. This is the direct opposite of “merit-based” hiring. Giving jobs on basis of the people may be related or are friends is a recipe for problems. Cultural issues aside, this is the basis of this claim, which cites some seven incidents that the applicant used as proof of bullying.

In this case, Her Honour was compelled to explain the role of each person involved as follows:

  • The applicant is related to three Board members and is a friend with another Board member.
  • The named person; related to one Board member.
  • The applicant’s mother and cousin of the team leader.
  • The uncle of a Board member who was alleged to have sexually harassed the applicant.
  • A Board member who was friends with the applicant and whose son worked for the employer and made a complaint against the team leader for breach of confidentiality when disciplined in relation to his performance.
  • The applicant’s sister.
  • And a further five individuals who are employed with the employer (who presumably are not described as friends or family).

Given the employer only employed some eight people, this case consumed the time of the entire organisation.

The applicant

The applicant was represented at the hearing, as it was submitted, she was diagnosed as having a learning disability in the areas of reading, writing and comprehension in her early years of education. For the whole of her secondary education, her mother stated that the applicant was placed in an Exclusive Learning Unit, which was separate from the mainstream classroom. Her mother submitted that the applicant would become confused when asked questions but was better placed to answer questions when posed by people that she trusted, as this would reduce her anxiety.

The independent investigator commenting:

“[The applicant] is quite a timid individual who takes offence to things most people wouldn’t. Ms Hicks is very young and fragile”.

Her Honour:

“I was left in no doubt that [the applicant] was competent to give evidence and understood the oath she took, notwithstanding her learning difficulties”.

Steps the employer is taking to address the workplace culture

At hearing the CEO was asked whether the employer had any plans to do anything around human resources and culture. The CEO gave the following evidence:

“We’ve – we’ve had a number of meetings, I think, where we’ve had employees who will come and do a presentation on – on the expectations surrounding bulling and what is – what is constituted as bullying and – and, you know, what is not acceptable and acceptable behaviours in the workplace.

“Yes, we – we are in the process of engaging a legal firm…to come in and provide that strategic overview around trying to fix, I think, the culture in the organisation and – and sort of bring all of the policies and procedures into something that I see as beneficial for the organisation, you know, in its long-term future.

What is it that you want fixed?—

“I – the behaviours in the organisation, I think, I want fixed, from the very top, I think, where there’s – there’s no clarity around what is reasonable expectation or behaviour expectations of staff within the workplace. This is from my – from my brief – I wouldn’t say brief, from my observations over the last 18 months, I think. It’s something that I believe has been a cultural insertion of, I think, bad behaviour that’s been allowed to fester and – and continue to fester and – and management not having or not being able to – to – to adequately – do deal with it in a timely fashion that I think is considered to be, you know, what is expected of, you know, organisations that are – that are, you know, maturer than – than, you know, [the employer]”.

Findings

The Deputy President examined the seven instances that we alleged to be bullying behaviour, finding:

  1. The disparaging (and fruitful language) used by a Board member at the Christmas party were not directed at the applicant, but another person.

“[The applicant] herself confirmed ‘I – I wasn’t really sure who she was talking about, but it wasn’t appropriate for a work environment’. Based on the evidence before me, I cannot find that the alleged behaviour as outlined by [the applicant] occurred, and if I am wrong and it did occur, it does not form part of the behaviour of being ‘bullied at work’. [My emphasis].

  1. The aforementioned Board member stated that the circumstances of Incident 2 did not occur, with the exception that she noted that she had laughed with a group of tourists but that such laughter was not directed to the applicant. Further, the Board member denies calling the applicant a ‘stupid dumb c**t’.

“From the accounts provided, I am unable to find that [the Board member] was laughing at [the applicant], was making fun of [the applicant], or that, if any disparaging language was used, it was so directed toward her. [The applicant], has submitted that [the Board member’s] to the allegation is an attempt to discredit [the applicant], in order to hide her own discrepancies of repeated unreasonable conduct toward [the applicant], however, I do not accept that submission. Specifics of such discrepancies were not detailed, and [the Board member’s] evidence in this respect was seemingly unchallenged”.

  1. The applicant accused the Board member deliberately pushed her with force into a male ranger and laughed loudly, whilst setting up a photo shoot. Her Honour:

“[The Board member] gave evidence to the investigator that she did not recall pushing [the applicant] into another male ranger. At hearing, [the Board member] revealed that she was coordinating the setup of the photo with another person, and a timer was utilised on her mobile to obtain the shot. [The Board member] explained that ‘we just all bunched in together where we were comfortable, and we took the photo’.

“However, and regrettably, no other witnesses were called to corroborate that [incident], therefore making it difficult to discern the events that occurred”.

  1. The DP finding that the Board member stuck up her ‘rude’ finger at the applicant, however the context was such that the gesture was not directed only to the applicant. While the applicant stated that the Board member would regularly single her out and make the gesture (in addition to stating ‘f**k you’), she would do this to other workers as well. The DP finding:

“The making of the rude finger at colleagues and telling those same colleagues to ‘f**k off’ (should the swearing have occurred) was improper conduct. However, it cannot be said that the [Board member’s] conduct was directed toward the applicant, or was such – given the context, that it was victimising, humiliating, intimidating or threatening. Further, it now having desisted, there is not the requisite risk to health and safety.

“In the circumstances, it cannot be concluded that [the Board member’s] behaviour formed part of the behaviours constituting being bullied at work.

  1. The applicant’s account regarding Incident 5 was that the Board member had stated ‘I hate lying c**ts’, and ‘some c**ts don’t pay rent’. The applicant was sitting in the back of the car, whilst the Board member was having a conversation with a lady called ‘Diana’ in the front of the car. There was no evidence given that applicant was referenced in the conversation. The DP:

“Objectively speaking, it is difficult to arrive at a conclusion that there is or was a rational basis for holding the belief, or feelings, that [the applicant] had. Based on the evidence before me, it is not open to conclude on balance, that [the comments were directed] toward [the applicant] – and as such the case is not made out that this conduct formed part of what otherwise would be considered being bullied in the workplace.

  1. With regard to Incident 6, the DP was “I am of no doubt” a discussion ensued between the applicant and the Board member in effect to “tell her mates not to leave their rubbish” and this was said in front of others. Following an ensuing argument, the applicant requested an apology because she considered that the Board member had spoken about her family in a disrespectful manner. The Board member did not apologise.

The DP, in this instance went to Katherine (Kate) Burbeck v Alice Springs Town Council; Georgina Davison; Skye Price; Clare Fisher the Commissioner observed:

“However, not all arguments or occasions of loud or raised voices can or should be characterised as breaches of codes of conduct and the like. They may simply be arguments. To consider all arguments, loud or raised voices as breaches of codes of conduct and the like would be to import standards of conduct into workplaces that simply are not the standards to be expected of citizens in other parts of their lives. Much depends on the context of what happened”.

And:

“The Full Bench in Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others concluded that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer.

“…I am content to conclude [the applicant was ‘at work’ when Incident 7 occurred. However, I again reiterate that whilst I have found there to have been an argument between the two, it is not the case that the conduct amounted to being bullied at work”.

Concluding

In dismissing the application, the DP concluded:

“With regard to the following conduct that is purported to constitute bullying within the workplace…, I have formed the view that there is an insufficient evidentiary basis for finding that such conduct occurred”.

And later:

“That does not, in accordance with the principles I have earlier stated, mean that the relevant conduct was in all respects entirely beyond criticism or constituted behaviours that were appropriate and acceptable in a workplace. The shortcomings of that conduct have in the course of my reasoning been identified in this respect. However, from an evidential perspective what was alleged did not reach the required level to persuade, on balance, that the conduct occurred, and/or the conduct was unreasonable”.

Commentary

When working with friends and family, is always a fine line between the professional and the personal. Having said this, what an interesting place to work – if you can tolerate opinionated foul language.