The Fair Work Commission recently rejected a bullying application by a longstanding employee whose employer had implemented changes to workplace practices and then found - during her performance appraisal - that the employee had not complied with these new requirements.1

Background

An employee (known as Ms AB) worked for The Salvation Army Employment Plus for nine years in the role of employment consultant, helping job seekers obtain employment.

In 2014, facing significant losses after a long period of what the Fair Work Commission described as rapidly failing management, Employment Plus initiated a new high-performance culture. This included hiring a new manager and a human resources team to improve staff efficiency.

The new manager implemented changes, such as decreasing the length of client appointments and increasing the number of appointments booked, as well as requiring team members to attend regular meetings and create reports.

Ms AB was also required to service clients from all four of Centrelink’s “streams” (Stream 1 clients being work-ready, Streams 2 and 3 clients having moderate to significant barriers to employment and Stream 4 clients having severe barriers to employment, such as substance abuse).

In the past, Ms AB had only serviced Stream 1 “job-ready” clients, although her position description clearly stated that she could be required to service all four streams. Ms AB refused to service Stream 4 clients as directed, because she felt she would not be safe with “somebody who is recently out of prison and they have drug issues, mental health issues, schizophrenia, they are considered not job-ready

Ms AB lodged an application for a “stop bullying” order under the Fair Work Act 2009 (Cth), alleging that she had been bullied by her manager in that:

  • her workload had increased and she had received criticism in her performance appraisal, including for not meeting the values of Employment Plus because of her refusal to work with Stream 4 clients;
  • her manager had made reference to her status as a single mother and had also separately referred to an incident in the past where a client had behaved violently towards him when he was trying to encourage her to service Stream 4 clients; and
  • her personal items were packed into a box while she was on leave as part of a new “clean desk” policy, but this was not explained to her immediately on her return.

The decision

The allegation that Ms AB’s workload constituted bullying was comprehensively dismissed by the Fair Work Commission and, in fact, no significant workload impact was identified as a result of the changes. Ms AB continued to work from 9.30am - 5.00pm with a 45 minute lunch break and other breaks throughout the day and her manager insisted that Ms AB and her colleagues leave work on time to ensure work-life balance.

The Commissioner said it was unremarkable that an agency such as Employment Plus would produce reports, and it was not unreasonable to require Ms AB to contribute to those reports.

Similarly, the fact that Ms AB was required to attend a regular 9.30am meeting was not unreasonable, despite her objections that this did not allow her time to check and respond to emails when she arrived at work. In addition, the Commission found that Ms AB’s workload was consistent with that of her colleagues.

Commissioner Lee was also satisfied that the new individual performance assessments were not unreasonable and it was not unreasonable that Ms AB’s refusal to service Stream 4 clients was a matter noted in her assessment. The Commissioner noted that Ms AB was “forced to adjust to a more active management after a lengthy period of the organisation managing her and her colleagues very poorly” and that, while this had a personal impact on Ms AB, it was not bullying.

After considering evidence including a recent WorkSafe inspection, Commissioner Lee said he was satisfied there was no safety risk posed by Stream 4 clients, despite Ms AB’s arguments to the contrary. Commissioner Lee said the change in client mix, alongside Employment Plus’s new approach to performance management, was “a major driver” for Ms AB making the bullying application.

In addition, Commissioner Lee found that while the manager had made an unfortunate reference to single mothers (without knowing that Ms AB was a single mother), this did not constitute bullying. His description of a violent incident he had faced at work was also not bullying, although the Commissioner found it was misguided as an attempt to encourage Ms AB to accept Stream 4 clients.

Finally, the Commissioner said that while  the manager’s failure to inform Ms AB of the reason her personal items had been packed away reflected poorly on his management, it did not constitute bullying.

Bottom line for employers

  • Management decisions associated with a significant and/or rapid change in a working environment will not constitute bullying behaviour directed at a particular employee if they are implemented in a reasonable manner.
  • New requirements to comply with position descriptions and increase performance outputs as part of the transformation of a rapidly failing workplace culture into a high-performing team are unlikely to constitute bullying.
  • Changes made to improve workplace culture may have a personal impact on a employees, particularly where this leads to a high level of staff turnover. However, where vacancies are replaced in a timely manner, it will be difficult for remaining employees to successfully make bullying claims based on an unreasonable increase to their workload.