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Inaction by Employer leads to FWC anti-bullying order

April 03, 2018

By Victoria Hansen and Lindsay Carroll, NRA Legal

The Fair Work Commission has found that a hotel manager and human resources advisor behaved unreasonably towards an employee by failing to follow their own policy to investigate her allegations of bullying.

Jennifer Watts [2018] FWC 1455 (20 March 2018)

The claim

The employee, Ms Watts, was (and remains) employed by Ramsey Health Care (Ramsey) as a catering assistant at the Glengarry Private Hospital (GPH).

Ms Watts filed an application for an order to stop bullying in September 2017, stating, “… there is a group of people who are repeatedly and unreasonably harassing, teasing, victimising, bullying, and victimising me at work. This behaviour is unrelenting, and will continue.

Among her complaints were claims that a group of colleagues made jokes about her, accused her of smelling of alcohol, being intoxicated when she was not, and accusations a co-worker verbally abused her.

Ms Watts claimed that she gave GPH’s hotel manager and human resources advisor the names and phone numbers of other colleagues who would corroborate her complaints of bullying and victimisation at work, but that Ramsey never contacted them.

The hotel manager gave evidence that Ms Watts told him and the human resources advisor on numerous occasions that she was being bullied at work, but that this was usually when she was undergoing formal investigation or being spoken to about her performance or behaviour. He asserted that he asked for specific details of the alleged incidents, and claimed it was impossible for him to commence investigations into her allegations of bullying as she did not give him this information.

The outcome

When considering Ramsey’s bullying and harassment policy and procedure, the Commission noted that it required managers to treat “all complaints seriously, investigating and resolving issues in so far as they are able.” Complaints of bullying should be dealt with “quickly, impartially and confidentially…the manager is required by law to investigate as soon as they become aware of an issue, regardless of whether the complaint is made formally and to deal with any safety or criminal matters as appropriate.

There was nothing in the policy which required an employee to provide the particular detail required by the hotel manager and human resources advisor in this matter before an investigation was undertaken.

The Commission found that by not investigating Ms Watts’ claim, the hotel manager and human resources advisor failed to follow their own policy and there was no reasonable explanation for their failure to investigate. They took unreasonable management action and behaved unreasonably towards Ms Watts.

The Commission determined that it was appropriate to make an order to stop bullying against the hotel manager, the human resources advisor and Ramsey. The details of this order are to be finalised in April.

What this means for you

This case confirms the importance of not only having relevant policies and procedures in place, but of the need to follow them.

As an employer, you should have a bullying policy in place which should be communicated to your employees. Training should be provided to ensure all employees, including managers, understand the policy and the procedures to follow should any complaints arise.

Under the Fair Work Act, orders to stop bullying cannot contain any amount of monetary compensation. Orders of this kind instead dictate how businesses are to structure certain areas of their business (for example, that the bully and victim not be rostered together) or undertake certain processes (such as requiring the adoption and implementation of best practice policies).

The postponement of the order itself was likely due to the need for the Commission to examine the business processes and structure to determine the appropriate order.

NRA Legal can tailor a policy for your business and provide training where necessary.

Please contact NRA Legal on 1800 RETAIL for tailored advice.

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