Jul 06

Is it bullying when?

Recent decisions by the Fair Work Commission have clarified, expanded and challenged our understanding of what is bullying behaviour. Lisa Klug, Worklogic Senior Workplace Investigator, discusses some scenarios and explains whether the behaviour can be described as bullying in the latest Worklogic blog post.

Scenario 1: When you are verbally abused at a party

“Is it bullying when……at a party, your colleague, out of the blue, and while under the influence of alcohol, shouts at you for 20 minutes, telling you how much he dislikes you, never wants to see you again?

You might respond no, it is not bullying, because bullying is “repeated, unreasonable behaviour”, and the behaviour in this case has not been repeated before or since, is not persistent, occurring over a period of time or part of a pattern of behaviour over time.

Think again! A Fair Work Commission decision has found that behaviour that occurred on one evening only, was repeated behaviour.

In particular, the bullying behaviour occurred over a period of 15 to 20 minutes, when an employee said to another, “I f*&%ing hate you”, “f*&% off”, “drop dead”, “f&%$ off and die”, “go kill myself” and “every time I see you I just want to punch you in the face” whereupon the victim left the bar. After 20 minutes, the victim returned and asked for the reason for the verbal “barrage” and as part of his response the employee told the victim to “f#$% off out of my face” to which the victim responded “tonight you’ve confirmed what a pathetic person you are and I am not the only person who thinks so” and “you’re a train wreck of a human being”. [1]

This decision expands what we understand to be bullying that was previously limited to behaviour to occur on more than one occasion.

Scenario 2: Several people engage in unreasonable acts towards you

“Is it bullying when….several people in your organisation each engage in an unreasonable act towards you and you have suffered a serious psychological injury. For example, your manager failed to remove a demeaning picture of you on the noticeboard, another employee suggested in an email that your pay should be stopped so you can see how it feels not to be paid, another colleague was insulting and verbally abusive at a work function, another called you a “lackey”…?

Arguably, it is bullying because the behaviour was repeated, unreasonable and has caused a risk to your health and safety. However, in an unusual case, the Fair Work Commission has found that in this example, no single individual had engaged in repeated behaviour.

While the victim had experienced bullying himself and suffered a deep sense of injustice and hurt, the current definition of bullying provided no remedy because none of the respondents had, by themselves, engaged in repeated behaviour. In addition, as none of those who had acted unreasonably were acting in concert with each other, the victim could not argue they were partly responsible for the others’ actions, and no-one had engaged in bullying as defined.[2]

This decision leaves those who are subjected to repeated, unreasonable acts from many individuals acting separately with no right to apply for an order to stop bullying under the Fair Work Act

Nevertheless, employers must act quickly to address the behaviours before they are repeated by any individuals and because the risk to the victim’s health and safety is already present even if there has not been bullying as defined.

Scenario 3: When you are ignored or excluded at work

 

“Is it bullying when…. Your colleague who was formally a friend looks at you in a hostile way and does not say hello to you?

No, according to a recent decision of the Fair Work Commission that described such actions as “a decision made” by one employee “some years ago to terminate any cordial or neighbourly relationship she had” with her former friend because the former friend had been gossiping and stirring up trouble for her (behaviour that, in the opinion of the Commission, is bullying when it is spreading misinformation or ill-will against others). The Commission found that terminating the friendship was a decision the employee had made and she “cannot be criticised for doing so.” [3]

In a conflicting decision, however, a manager who stopped saying hello to an employee in the morning, handed out photocopying to others but excluded the employee, defriended her on Facebook because she did not like the employee, (amongst eight other examples of similar bullying behaviour) were behaviours that were found to be bullying.[4]

This low to moderate level of unresolved conflict or what might also be called ‘social exclusion’ between staff can have a serious impact on staff wellbeing. While these two cases are conflicting about whether such early signs of conflict are bullying or not, early resolution to avoid an escalation of the conflict is essential so that it does not escalate further and become moderate to serious bullying behaviours that will indisputably be recognised as bullying.

Each of the above cases, and many others recently made, clarify, expand or challenge our understanding of what is bullying behaviour. This is a jurisdiction that is developing quickly and is one to watch closely.

 

About the Author

 

Lisa KlugWith an outstanding reputation in litigation, research and management, Lisa Klug joined Worklogic from legal practice. Lisa has conducted more than 100 investigations into workplace misconduct for a diverse range of employers spanning government, business and non-profits.

She also undertakes workplace reviews, advises on employment policies and runs popular in-house training programs and workshops about high conflict employees and running in-house investigations.

 

If you would like to know more about bullying cases and how they impact on our understanding of what is unlawful bullying, please contact Lisa Klug, lklug@worklogic.com.au, 03 9981 6557 for an obligation free, confidential conversation.   Worklogic also offers in-house training courses for managers and staff in appropriate behaviour.

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[1] O’Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWC 7011 (14 October 2015)

[2] Jade Hammon v Metricon Homes Pty Ltd T/A Metricon Homes and others [2016] FWCFB 1914

[3] Page [2015] FWC 5955

[4] Roberts [2015] FWC 6556