Fair work stop bullying orders and health and safety links

The required link for conduct complained of in a workplace to constitute workplace bullying warranting stop bullying orders by the Fair Work Commission is that there be a real risk to health and safety which is highlighted in this extract from a Fair Work Commission stop bullying case.

 

“[7]             I make the following findings. First, I accept Mr Moran’s evidence that he raised his voice on 18 and 20 September 2023, but not to the point of yelling. The difference is potentially a fine one, and as Mr Shinkarsky said, even with an instrument recording, there could be disagreement about when one crosses the line. I also find that Mr Moran is sincere in his regret about having raised his voice on those days. I note that Mr Moran has been employed at the Council for 11 years and that he has not been the subject of any other complaint, either prior to September 2023 or since. It is understandable that Mr Shinkarsky might be upset by Mr Moran’s raised voice. Raised voices are to be avoided in the workplace but rare deviations should not be judged too harshly.

 

[8]               Secondly, I find that the Council took Mr Shinkarsky’s complaint seriously. It investigated the matter and reach a reasonable conclusion. In my opinion the Council should have told Mr Shinkarsky which allegations had been upheld in part and why. This might have helped him to put the matter behind him. Its failure to do so however was not unreasonable conduct that created a risk to health and safety.

 

[9]               Thirdly, even if the two instances of the raised voice amounted to repeated unreasonable conduct, I do not consider that they amounted to bullying because I am not persuaded that they caused a risk to health and safety. The fact that Mr Shinkarsky says that he is unwell and that he believes that this and other conduct has adversely affected his health is not sufficient. Generally there must be objective evidence that demonstrates the existence of a particular risk to health and safety, as well as evidence to sustain a conclusion that there is a causative link between the impugned conduct and that risk, rather than some other cause for the risk. Further and in any event, I find that it is very unlikely that there will be further episodes of a raised voice being directed at Mr Shinkarsky, firstly because Mr Moran genuinely regrets raising his voice and in my view will not raise his voice again, and secondly because Mr Moran and Mr Shinkarsky will have little contact now that Mr Maher has returned to work and is managing Mr Shinkarsky, and Mr Moran sits two levels of management above him.

 

[10]             Fourthly, it was not unreasonable of Mr Moran to say that he believed Mr Shinkarsky was incapable of undertaking the public lighting project. What he meant by this was that he believed Mr Shinkarsky was presently incapable of doing this, not that he was intrinsically incapable of it. Mr Moran noted in his evidence that Mr Shinkarsky was a capable worker. In any event, it is not unreasonable for a manager to express a sincerely held opinion about a

 

 

 

worker’s performance or capacity. That is core business for a person whose job involves managing people.

 

[11]             Fifthly, I find that the Council had concerns about Mr Shinkarsky’s performance and that this was the reason that he was required to attend the office five days a week. This was a reasonable requirement. It is irrelevant in these proceedings whether Mr Shinkarsky’s performance was poor or good. The Council’s concerns were genuinely held.

 

[12]             Sixthly, based on Mr Shinkarsky’s own evidence, I am not persuaded that his current supervisor, Mr Maher, acted unreasonably towards him. The three examples cited by Mr Shinkarsky are ordinary encounters between a manager and a worker concerning conduct and performance. There is no indication of anything inappropriate or unreasonable on Mr Maher’s part. Mr Maher’s email to Mr Shinkarsky of 31 January 2024 was attached to Mr Shinkarsky’s submissions. It politely asked Mr Shinkarsky to let him know what work he had done that morning, and noted that, from Mr Maher’s observations, Mr Shinkarsky had been away from his desk for most of the time despite having no meetings in his calendar. Mr Maher also said that he had seen Mr Shinkarsky having several conversations and phone calls and asked whether these were related to work. Mr Maher’s email of 6 February 2024 asked Mr Shinkarsky where he had been between 11.20 and 12.40 that morning, as he had been absent yet had no meetings in his calendar. These are perfectly reasonable questions for Mr Maher to have put to Mr Shinkarsky. The tone of the email messages is polite and professional. As to Mr Shinkarsky’s account of his interaction with Mr Moran and Mr Maher on 6 February 2024, I find this too to be a routine matter not involving unreasonable behaviour on their part.

 

[13]             Finally, I accept Ms Bateman’s statement that the Council wants Mr Shinkarsky to return to work and that it does not want Mr Shinkarsky to feel like he is looking over his shoulder. I am confident that the Council will bear this in mind when he returns to work. Equally however the Council needs to be able to address its concerns about Mr Shinkarsky performance. I also consider that Mr Shinkarsky should allow the Council to seek further information from his doctor about how it can facilitate his return to work.

 

[14]             Mr Shinkarsky has a different perception about many of these matters. He genuinely believes that he has been subjected to bullying and that there is a risk of this recurring. But the Commission must make an objective assessment of the evidence and make findings based on the balance of probabilities. I am not persuaded that Mr Shinkarsky was bullied at work, or that there is a risk that he will be bullied at work in the future. The jurisdictional requirement in s 789FF(1)(b)(ii) has not been established. The application is dismissed.”

 

 

Shinkarsky v Yarra City Council and another (2024) FWC 1158 delivered 3 May 2024 per Colman DP