Bullying Claims and Disciplinary Processes

Employees sometimes have a very broad view of what might be considered to be bullying behaviour. Bullying as defined in the Fair Work Act consists of repeated behaviour causing a risk to the safety of someone in a workplace. This is a very broad concept, but it does not cover just anything which the employee does not like. One area in which this issue can come up is an application by an employee for anti-bullying orders relating to a disciplinary process. Take the case of Hien, Sankey and Soy and St Vincent de Paul Society [2019] FWC4274), as an example of how this can work out.

The facts of the case

• October 2018 – Vinnies issued show cause letters to three of their employees, about unrelated issues;
• one of the employees had a Performance Improvement Plan in place;
• the employees were represented by their Union;
• March 2019 – the employees applied for stop bullying orders in relation to alleged conduct of  Vinnies and six of its managers, and applied for orders restraining Vinnies from imposing any disciplinary sanctions on them until the outcome of their stop bullying applications were decided, on the basis that the disciplinary action proposed, and the disciplinary process itself, were essentially part of the alleged bullying;
• Vinnies had conducted an internal investigation into the bullying allegations, and at the suggestion of the Fair Work Commission, an external investigation was also conducted, and disciplinary processes were suspended while the external investigation took place; and,
• both investigations concluded that no bullying had taken place.

Deputy President Sams rejected the claim to stop the disciplinary processes continuing until after the investigations were complete, because:

1. the allegations of misconduct and poor performance which were the subject of the disciplinary process were unrelated to the bullying allegations made against the managers and Vinnies; and,
2. it was not appropriate to interfere with the employer’s prerogative to pursue disciplinary proceedings, especially in a context where two investigations had found the bullying allegations to be unsupported (even though this was still contested by the employees).

Key takeaways

DP Sams commented that it is not acceptable to use the anti-bullying jurisdiction as a shield to prevent justifiable disciplinary processes and outcomes, or to claim that the disciplinary processes or outcomes themselves are repeated unreasonable behaviour constituting bullying. Doing so demeans and undermines the important work of the anti-bullying provisions in preventing (real or serious) workplace bullying.

The Deputy President noted that the stress and anxiety of the employees had been exacerbated by the “on again-off again” disciplinary process, which was in part due to the union’s actions having deferred it for many months.

The Deputy President concluded that orders preventing the disciplinary processes continuing would be oppressive to the employer and would “unreasonably intrude into management’s legitimate right to pursue disciplinary outcomes against employees“.

While bullying allegations need to be treated seriously, that does not preclude an employer from taking assertive action in relation to outstanding workplace issues, so long as those processes can be seen to be rationally based and conducted in good faith, and not as part of organisational bullying. Managing the disciplinary process while keeping that and the bullying issues separate can be difficult, but clarity about the separate processes and clear demonstration of possible grounds for discipline, clearly communicated, will go a long way to supporting an employer’s position in such a situation.