The Fair Work Commission’s anti-bullying jurisdiction has determined not to award orders in favour of a senior public servant who alleged that his manager had been bullying him.
The allegations made against the manager by the employee included that the manager told him ‘to go back where he came from’, pressured him to terminate his employment, put him down and criticised his every move, treated him like a slave, fabricated performance issues, spoke to him in a condescending manner and constantly checked what time the employee arrived and left the office.
The employee stated that his manager was ‘making my life miserable which has affected my health adversely, and impacted on every aspect of my life’.
The employee sought orders from the Fair Work Commission to stop the bullying by requiring that the manager was not to have contact with the employee and to make enquiries as to why the employer did not have proper processes in place for investigating bullying.
In his evidence, the employee’s manager confirmed that the employer had a number of issues with the employee’s performance and the employee was being performance managed in relation to those issues. The employer had commenced two investigations into the employee’s bulling allegations and both had failed to find any evidence of workplace bullying.
Senior Deputy President Drake found that the manager had not engaged in bullying conduct, stating that:
“All the material which I have considered demonstrates an ordinary exercise of management prerogative. I am satisfied that the respondent’s managers are managing the applicant’s performance in an ordinary fashion.”
Lesson for Employers
This case reinforces that the Fair Work Act’s intention that ‘bullying’ is not to be confused with the concept of reasonable management action. The new anti-bullying jurisdiction is not designed to prevent employers from appropriately managing underperforming employees. Where an employer can demonstrate that reasonable management action has been taken against an employee, a claim of bullying and harassment can be overcome.
Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation.