Workplace bulllying cases in the Fair Work Commsion

This is an extract from a recent anti-bullying case determination by the Fair Work Commission. The passages which I am publishing demonstrate the clinical approach which the Commission takes when dealing with applications for stop bullying orders, and the issues which are addressed.

“Consideration

GES unassigned

[189] Mr Scott’s consternation regarding the reasonable and lawful direction to complete a certain number of GES unassigned tasks each month is extraordinarily immature. Ms Williams didn’t create or determine the numbers that all Account Managers needed to achieve; Vita People determined it as a business, based on its client’s requirements. It was a Telstra requirement that Vita People contact 3,500 of its customers by 30 June 2021 and the remaining 1,500 by 30 September 2021. With such a significant task to perform, it is understandable that monthly targets were set for each account manager. Everybody had their fair share of calls to make, including Ms Williams.

[190] The petulance of Mr Scott in not wanting to do this task because he didn’t think it valuable underscores the disruptive and rude behaviour that I consider he has demonstrated towards Ms Williams.

[191] In the first three months of 2021, Mr Scott was on course to significantly fail a requirement that had been set for him and his peers. He achieved 45/60 in January 2021, but then performed only 28 out of the required 90 calls in February 2021. While he had complete success in March 2021, by the last week in April 2021, it was clear that he was not going to achieve the requirements of his role.

[192] Instead of spreading out the task over the month, as tedious and as irrelevant as he considered it to be, he left it to the last days of April 2021 to make up the shortfall which was impossible to do. He achieved only 15 from 100 calls he was required to make in April 2021. He was suitably and responsibly informed by Ms Williams of his obligation. He then went on a tedious, aggressive and unnecessary frolic for several months, arguing over the requirement to fulfil the task. The effect of his disputation of having to perform this task, a task performed satisfactorily by his peers, is that he whinged and moaned about it when he had no right to do so.

[193] No employee will ever like every single task they are required to perform. There are many tasks that employees perform which they consider to be irrelevant, unnecessary, unpleasant, of no utility or boring. Reasonable employers will try and limit the amount of unpleasant tasks an employee is required to perform, but in life, these tasks need to be performed by somebody.

[194] At the time, Telstra required Vita People to perform these tasks, and Vita People paid its employees to perform these tasks. Mr Scott was not singled out to perform this particular task, however, he carried on as though he was. Where he relied on the fact that his colleague, Harry was not issued with a PIP over this issue, I accept Ms Williams’ evidence that Harry was not ultimately required to meet relevant targets due to his geography and a lack of colleagues.

[195] Ms Williams’ frustration with Mr Scott’s disputation of the GES unassigned calls was completely reasonable and understandable. Mr Scott’s continued reluctance to perform this required task is evidenced when his May, June and July 2021 results are considered – achieving only 32%, 18% and 27% respectively.

[196] I consider that from April 2021, Mr Scott considered that because he was disputing the task, and informing his management how stupid and idiotic he considered the task to be, he would be excused from having to perform it. His colleagues, were, on Ms Williams’ evidence, meeting their full quota. Mr Scott, it seems to me, relished being the ‘squeaky wheel’.

[197] I am not satisfied that in respect of requiring Mr Scott to meet the required GES unassigned classifications, Ms Williams acted unreasonably towards Mr Scott. I am further satisfied that Ms Williams’ conduct was reasonable management action carried out in a reasonable manner. Ms Williams had the full support of her managers, the HR team and her employer. For Ms Williams to have been acting unreasonably towards Mr Scott, all of these managers would have had to have been acting unreasonably towards Mr Scott, which they were not.

Performance Improvement Plan

[198] Mr Scott certainly made a very big fuss about having been placed on a PIP in late April 2021. His evidence to the Commission is that he had never been involved in a disciplinary matter of this magnitude before.

[199] He had earlier been placed on a PIP by two male managers and successfully worked his way through those. He knew what was required of him; focus on what was specifically required within the PIP and work through it so that a PIP is then withdrawn. In April 2021 this was not his first experience being placed on a PIP.

[200] Ms Williams had been trying to address with Mr Scott his failure to meet the GES unassigned classifications throughout April 2021. He decided he knew better and would not accept Ms Williams’ advice, coaxing and ultimately her decision to place him on PIP. One of his first reactions was that he understood he needed to have had three consecutive months of underperformance to be placed on a PIP. Even though there is no such requirement within the policy, Mr Scott had failed to meet the requirements of him in January, February and April 2021. If that’s what he thought was a threshold for the generation of a PIP, he had met the threshold, albeit having performed satisfactorily in March 2021. There was, of course, no threshold, but he had certainly been underperforming in a particular task for three of the past four months.

[201] When he was placed on a PIP, requiring particular effort to be made on a very particular task, he thumbed his nose at it, with incredibly low percentages achieved for the next three months. Having made a complete shambles of his figures for April 2021, he was tasked with making five phone calls per day in order to meet the goal of 100 calls in the month. He simply could not be trusted to meet this requirement without breaking it up into daily tasks. He had demonstrated this in the last few days of April 2021.

[202] Ms Williams was correct to place Mr Scott on a PIP. She did so with full authority of management. She did not need his consent to do so, nor his agreement as to what was within the PIP. I accept that there was some discussion once the first version was put to him and some minor refinement of the PIP. It did not require Mr Scott’s consent to settle the PIP. I consider Mr Scott’s objection to the process adopted by Ms Williams, with the support of HR, to be unreasonable and not supported by the policy.

[203] Even when he knew what was required of him in May 2021, and by 19 May 2021 had completed only 19 calls, Mr Scott rudely informed Ms Williams that he didn’t need to be reminded and he considered that she was micro-managing him. While he said that he could manage it himself, he clearly could not. He made only 32% of the calls required of him in May 2021 despite his sarcastic email to Ms Williams.

[204] Having observed Mr Scott throughout the video hearing and having regard to all of the material before me, I reasonably conclude that Mr Scott would have been unlikely to have addressed his manager in such a condescending and rude manner if his manager was male. I reasonably conclude that Mr Scott was disrespectful to Ms Williams because she is female, and I conclude that he has, at times, been blatantly misogynistic towards her.

[205] I consider that Mr Scott was aggrieved to have been placed on a PIP because he considered that he needed to somewhat agree with the measurements and the particular areas of focus. The employer’s policy does not require this.

[206] Mr Scott was further advised that he wasn’t to watch or listen to podcasts or videos for the duration of the PIP, which was only one month in length, unless it was specific to Vita People or Telstra. I consider this to be a reasonable and lawful direction given Mr Scott had failed to meet the other requirements of him. His disputation included others being permitted to listen to various things while they performed administrative work. Mr Scott should have understood that, while ever an employee is performing the work required of them, they might be permitted other privileges. What he considered to be educational and important does not equate to a right to listen to this material during work time.

[207] I am satisfied that the prohibition on listening to such material was a lawful and reasonable direction and appropriate to be within the PIP issued to Mr Scott. It is akin, if you like, to not being able to eat dessert until one finishes their meal. If Mr Scott was meeting all of his required tasks, I cannot fathom Vita People holding any concern with him spending administrative time listening to various podcasts. He was not, however, coming close to meeting all of the required tasks.

[208] I accept Ms McDowall’s evidence that Vita People’s Managing Performance & Conduct Policy differentiates between remedial action and disciplinary action. It provides a very clear distinction. I am satisfied that the PIP that Mr Scott was placed on was remedial action and not disciplinary action, and that it was appropriate to do so in the circumstances.

[209] I am not satisfied that in placing Mr Scott on a PIP, including the manner in which she did, Ms Williams acted unreasonably towards Mr Scott. I am further satisfied that Ms Williams’ conduct was reasonable management action carried out in a reasonable manner. Ms Williams had the full support of her managers, the HR team and her employer. Again, if Ms Williams had been acting unreasonably towards Mr Scott, then all of these managers were acting unreasonably towards Mr Scott, which they were not.

Strategic portfolio plan

[210] Mr Scott was alone in not having provided to Ms Williams his draft strategic portfolio plan. Where he considered that his colleague, Ms Dougall had similarly not provided her draft, I was provided evidence that Ms Dougall did, in fact, provide to Ms Williams her draft on the afternoon of 4 May 2021 prior to the planned 3:00pm meeting.

[211] On the evidence before the Commission, it is clear that Ms Williams provided appropriate assistance to Mr Scott to improve upon his strategic portfolio plan when she met with him on 4 May 2021. If Ms Dougall hadn’t provided her draft when she did, she would have been in the meeting too. This is clear from the invitation sent by Ms Williams to both employees.

[212] Mr Scott’s suggestion that he was made to feel like a child in detention and Ms Williams was doing this to assert some form of control over him is an extraordinary claim which I do not accept. Disturbingly, in his evidence he suggested that Ms Williams is not his mother or teacher, and if he hadn’t completed the activity, he should have been free to face the consequences of his inaction.

[213] On this issue, I consider that Mr Scott has a significant insecurity regarding Ms Williams’ management of him. She assisted him to meet his obligation. She helped him ‘get over the line’. He has now, without justification, turned it into an alleged power play by Ms Williams.

[214] I am not satisfied that Ms Williams acted unreasonably towards Mr Scott when she required him to meet with her on 4 May 2021 to work on his strategic portfolio plan. I am further satisfied that Ms Williams’ conduct was reasonable management action carried out in a reasonable manner.

Inappropriate conduct towards Ms Williams

[215] Having reviewed the chat messages between Mr Scott and Ms Williams, I consider that Ms Williams has overstated any concerns she had with Mr Scott’s written communication within them. There are very few instances where the written conversation was less than pleasant or not professional. Their chat dialogue is largely professional and often friendly. Having reviewed undated text messages between the two, at one stage their text messages were playful and fun, including inviting each other to drinks and to meet each other’s friends.

[216] I do consider, however, that Mr Scott has for many months been very disrespectful towards Ms Williams by continually verbally referring to her as dude, bro or man. I accept that Ms Williams repeatedly informed him of her displeasure at being referred to in masculine terms. I am of the view that Mr Scott has deliberately continued to use these references towards Ms Williams. I accept Ms Williams’ evidence that he was continuing to use these terms towards her right up until the date of the hearing in September 2021.

[217] Mr Scott’s conduct towards Ms Williams when she informed him on 29 April 2021 that he was to be placed on a PIP was unacceptable. I accept that he said to her, “Dude, you’re wrong, this is bullshit”, and informed her that she was ruining his career. Further, I accept that he told her she was a bad person and a bad manager.

[218] On 6 May 2021, Mr Scott wrote:

  • “The PIP and application and entire circumstances around it felt targeted to me – is this really for improvement of are you trying to establish some form of dominance? This is the reason why I asked for prior consultation because in any business setting team members should be able to work collaboratively on their improvement rather than be handed with a document with a list of ‘to do’s’”
  • “The issue of a PIP with trying to move within Vitagroup especially after your advice yesterday. I feel it might hinder future opportunity and if it can be handed to a team member flippantly. It means that any team leader with a vendetta could use it as a weapon in a professional context.”

[219] I am of the view that Mr Scott was attempting to undermine Ms Williams’ authority when he sent this to her and to Mr Parks and Mr Winter. The suggestion that she was trying to dominate him betrays a man concerned that his manager is female, in a superior position. Mr Scott ought to have been fully cognisant of his relevant failures at this point in time. He was, in my view, attempting to cause trouble for Ms Williams, rather than being legitimately aggrieved.

[220] His concern that having been issued a PIP might affect his future career did not seem to cause him any issue when he was earlier issued with and satisfied the requirements of two PIPs. He knew there was a fulfilling career available to him after having been issued a PIP.

[221] I accept Ms Williams’ evidence that she considered an email from Mr Scott to various managers, suggesting that there are some instances of her relevant experience which might be “out of [her] range” to be condescending. I consider that Mr Scott felt he had a free platform, including the HR team and other managers to take cheap shots at Ms Williams.

[222] I am satisfied that Ms Williams appropriately reported Mr Scott’s conduct to the HR team and it is something that Vita People says that it wishes to address with Mr Scott after this application has been determined. I informed Vita People that its letter to Mr Scott of 4 June 2021 did not, in my view, provide sufficient specificity of the allegation of improper conduct towards Ms Williams. He would, through these proceedings now be aware of all of the allegations. If Vita People does wish to continue with a disciplinary process with Mr Scott, it should detail in any letter to him the specific allegations. I would also caution Vita People against calling disciplinary meetings “hearings”.

[223] I would implore Mr Scott to reflect on what I have said in this decision and offer to Ms Williams a suitable apology for the manner in which he has spoken inappropriately towards her. Such an apology, if made and if genuine, and supported by conduct, might satisfy Vita People not to continue a disciplinary process.

Conclusion

[224] In order to make final orders in a bullying application, there are two requirements under s.789FF(b) of the Act. The Commission must first find that Mr Scott has been bullied at work by an individual or a group of individuals and secondly that there is a risk that Mr Scott will continue to be bullied at work by the individual or group concerned.

[225] Once these two requirements have been satisfied, s.789FF confers on the Commission a broad, discretionary power to make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent an employee from being bullied at work.

[226] There is no dispute that the employer is a constitutionally-covered business, and it is also accepted by the parties in this case that the alleged conduct, if it occurred, took place whilst Mr Scott was at work.

[227] The application of s.789FD has been discussed in various decisions of the Commission where it has been held that the terms of s.789FD are to be applied objectively and that s.789FD(2) ‘reasonable management action carried out in a reasonable manner’ is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable.3 It also emphasises the right of management to take reasonable management action in the workplace.4

[228] The issues in dispute in this case are therefore whether Ms Williams has repeatedly behaved unreasonably towards Mr Scott and whether any such behaviour has created a risk to his health and safety. In considering whether there has been repeated unreasonable behaviour the Commission needs to consider whether any of the conduct was reasonable management action taken in a reasonable manner.

[229] In Mac v Bank of Queensland Ltd,5 Hatcher VP provided the following examples of conduct “which one might expect to find in a course of repeated unreasonable behaviour that constituted bullying at work” as including:

“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”6

[230] In Edwards v E S Trading Co (Discounts) Pty Ltd (t/as E & S Kitchen, Bathroom Laundry),7 an employee’s genuinely held belief that she was being bullied at work was insufficient to enliven the Commission’s jurisdiction. The conduct must not only be perceived as being bullying, but that belief “must be reasonable in the sense that it is able to be supported or justified on an objective basis.”

[231] In Ms SB, Hampton C observed that:

“whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time”8

[232] The Commissioner also relevantly stated:9

“The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”. In general terms this is likely to mean that:

  • management actions do not need to be perfect or ideal to be considered reasonable;
  • a course of action may still be “reasonable action” even if particular steps are not;
  • to be considered reasonable, the action must also be lawful and not be “irrational, absurd or ridiculous”;
  • any “unreasonableness” must arise from the actual management action in question, rather than the applicant’s perception of it; and
  • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”

[233] Having regard to the non-exhaustive list of examples of conduct at [229], on the evidence before me, I am not satisfied that Ms Williams has behaved unreasonably towards Mr Scott. Further, I am not satisfied that if she did on one occasion, it is behaviour which has been repeatedly unreasonable.

[234] The Commission can only act when its jurisdiction is invoked, and even then, there is a discretion whether to issue orders to prevent the continuation of any bullying.

[235] The evidence has not established, to my satisfaction, that Ms Williams has acted unreasonably towards Mr Scott. Having regard to all the circumstances, I am not satisfied that Mr Scott has been bullied by Ms Williams at work. If it were necessary to do so, I would find that all of Ms Williams’ conduct is reasonable management action carried out in a reasonable manner.

[236] In reaching that conclusion, it has not been necessary for me to determine whether the alleged instances of bullying behaviour created a risk to Mr Scott’s health and safety. As an aside, I recommend to the parties that Vita People’s employee assistance program be made available to Mr Scott to allow him to explore opportunities to improve his interpersonal skills. He has been employed by Vita People for a reasonable period of time and appears to me to be knowledgeable in his chosen career.

[237] Because I am not satisfied that Mr Scott was bullied at work, as alleged, there is no power to make the orders sought, and the application is dismissed. An order giving effect to this will be issued in conjunction with this decision.”

Scott v Vita People Pty Ltd and another (2022) FWC 24 delivered 10 January 2022 per Hunt C