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Detailed external investigation assists employer to escape wrath of FWC

November 29, 2016

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The Fair Work Commission has refused to grant an application for a stop bullying order after finding, through a detailed external investigation, that the Applicant had failed to establish that she had been the victim of workplace bullying.

What happened?

The Applicant, who had worked as a sales consultant with a large retailer of kitchen, bathroom and laundry products alleged that a group of workers had engaged in “bad” behaviour and applied for a stop bullying order.

She referred to an incident which had involved a number of colleagues arguing in front of customers in November last year. She complained about this to her store manager and the Company engaged an external investigator. The external investigation found the allegations of bullying unsubstantiated but recommended mediation.

During the external investigation, however, a complaint of workplace bullying was made against the Applicant. The Applicant said that this revelation had left her “shattered” and that she had been unable to work for several days. The complaint resulted in her receiving a warning.

The Applicant raised several other incidents of alleged bullying; including statements made by one of her colleagues that she had “egged” that individual’s car, claims by another colleague that she had been involved in taking sales from that individual and a recent occasion where a third colleague had accused her of spilling coffee beans in the kitchen area and had yelled at her for failing to clean it up.

The Applicant alleged that the “collective behaviours” of her work colleagues constituted bullying. She also claimed that management had viewed her complaints as trivial and had failed to take appropriate action. This was alleged to have contributed to her feelings of being discriminated against and isolated in the workplace.

The Decision:

The FWC noted that the matter “might have been handled differently” but accepted that the employer had acted reasonably in appointing an external investigator who had conducted a detailed investigation. Whilst acknowledging that the sales consultant had genuinely believed that she had been bullied, the FWC held that the Applicant had failed to establish this within the meaning of the Fair Work Act. The Application was dismissed on that basis.

Have you received a complaint of workplace bullying?

Our clients are increasingly concerned about staff members who lodge complaints of workplace bullying, particularly after being subjected to disciplinary action or performance management. Although reasonable management action that is carried out in a reasonable manner will not constitute workplace bullying, it is important that you discharge your obligation to investigate and take disciplinary action where appropriate.

For more information on the recommendations and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.