Tao Sun v CITIC Pacific Mining [2014] FWC 3839 

The Fair Work Commission has held that allocating a project outside the general job description of an employee is not bullying and that an allegation of bullying does not permit an employee to conduct his own surveillance of those who are alleged to be conducting the bullying.  

In Tao Sun [2014] FWC 3839, the managing director of CITIC Pacific Mining had allocated a project to an IT manager that was not covered by his job description and had assisted him with it. The managing director had also monitored the performance of the IT manager during the completion of the project, having regard to his performance in the previous year. The IT manager perceived this as bullying and had secretly accessed the managing director's diary and files in order to substantiate that claim. The employee had also secretly recorded meetings between himself and the managing director in an attempt to provide further evidence for his allegations. 

The Commission held that the allocation of tasks outside the job description of an employee was provided for by the contract. The contract allowed the employer to "vary" an employee's duties, as long as the majority of them remained within the scope of the role. Accordingly, it did not constitute bullying. As to the conduct of the employee, the Commission held that the employee was still required to abide by the policies of the employer and could not breach them in order to substantiate the claim. The Commission also held that the employer was entitled to continuously examine the performance of the employee and that such reviews were not confined to a particular review period. 

Key Takeaways

The decision reasserts three fundamental entitlements of employers. The first is that there remains flexibility in allocating tasks to employees on the basis of business requirements where provided for in the contract of employment. Employers, within reasonable bounds, control these allocations. The second is that employers are entitled to continuously monitor the performance of their employees. Third, employers have rights during bullying investigations, and employees should be reminded that their conduct during those investigations must remain within the limits of company policies. 

Andrew Berriman