John Krnjic [2017] FWC 3688 (AB2016/497). Gregory, C. 12 July 2017

 

This matter involves a Mr John Krnjic who works part-time as a Team Member for Bunnings. Mr Krnjic made application to the FWC for a “stop bullying order”, alleging he had been bullied at work by his Team Leader. Mr Krnjic has been off work since June last year after he was suspended following a complaint made by his team leader. and remains off work on unpaid sick leave, which is supported by on-going medical certificates.

 

The Commissioner was very thorough in his consideration of this matter, citing many case precedents and adding a number of his own observations, I believe that this may well be seen as the decision that practitioners will go to relating to bullying (notwithstanding that such matters going to arbitration is a rarity in itself). In saying this, the decision was very technical in its nature, focusing on the meaning of words “reasonably” and about what constitutes “repeatedly behaving unreasonably.”

 

Whilst finding there was no breach to the bullying “law”, the Commissioner did comment that Bunnings management could have done better in handling this matter. In the Commissioner’s own words: “this matter involves two strong personalities who both have a genuine commitment to their work.”. The team leader, being new to the role, being described as a “micro manager” and the applicant, having a strong personality and did not appreciate scrutiny in his work.

 

Mr Krnjic also alleges he has been bullied by management at the Store. He has also made complaints in the past about other employees during his employment with Bunnings, however, none of those individuals remain in employment at the Northland Store.

 

The Commissioner considered:

 

“I have no reason to doubt that Mr Krnjic believes [my emphasis] he has been bullied by being singled out and treated differently from other employees. However, that of itself is not sufficient to establish he has been “bullied at work” in the context of the legislative framework contained in the Act of that legislation, and the authorities that have considered how those provisions should be applied”.

 

Further considerations were:

 

s.789FF requires that various pre-requisites be satisfied in order to establish that a worker has been “bullied at work.”

 

  • That the employee “reasonably believes that he or she has been bullied at work.” This in turn requires that not only must the belief be actually and genuinely held, but it must also be a reasonable belief when viewed objectively and not something that is, for example, based on an irrational or absurd view.
  • That “an individual” or “a group of individuals” have repeatedly behaved unreasonably towards the employee, and “that behaviour creates a risk to health and safety.
  • That “reasonable management action carried out in a reasonable manner” does not constitute bullying at work.

 

In summary, the Commissioner made the following points:

 

  • It is first necessary to establish the existence of repeated unreasonable behaviour. This can extend to encompass a range of behaviours over different periods of time.
  • Secondly, “unreasonable behaviour” can be viewed as behaviour that a reasonable person would consider to be unreasonable.
  • …“repeatedly behaving unreasonably” …should first be considered in terms of the intention to prevent bullying at work [and] “unreasonableness” should not be limited to something which is, for example, irrational, bizarre or so unreasonable that no reasonable person could have contemplated that course of action.
  • Thirdly, for conduct to be considered to be reasonable it does not have to be the best or the preferred course of action. The test instead involves consideration of whether something was done reasonably, and not whether it could have been done in a more reasonable or different way.
  • Finally, it is necessary to establish that the relevant behaviour “creates a risk to health and safety.” This requires that there be some causal link between the behaviour and the risk to health and safety when viewed in a common sense and practical way.

 

Conclusion

 

Whilst this decision was in Bunnings favour, it was very “technical” in its content and did not mention whether Bunnings had in place an anti-bullying policy and, if so, was it followed?

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.