A worker who was dismissed following a bullying compliant being made against them has been awarded $130,000 in compensation (with further penalties yet to be determined) in an adverse action claim, because the business failed to even consult the worker on their version of events.
The business received a complaint from a subordinate that the worker was bullying them because the subordinate had not been invited to ‘catch ups’ and the worker had not ‘checked in’ with the subordinate after she returned from leave.
The business then dismissed the worker for ‘posing an imminent risk’ to the health and safety of the subordinates health.
The decision to terminate the worker was made without taking the required step of seeking the workers version of events around the bullying claim.
The same subordinate had earlier lodged a bullying claim against the worker stating that the worker was pestering the subordinate and contacting them unnecessarily causing them stress. The initial bullying compliant resulted in a warning being issued to the worker.
The worker lodged an adverse action claim, arguing his dismissal was not in response to contact with the subordinate, but rather in response to him making bullying complaints against his own manager and lodging a stop-bullying application against him in the Fair Work Commission.
The worker also claimed the operations director wanted to get rid of him for complaining about deficiencies in her investigation into the facilitator’s first complaint, and seized upon the facilitator’s second, meritless complaint as a reason to terminate his employment.
Justice Darryl Rangiah ordered the business to pay the sacked learning and development lead $130,000 in compensation (with a pecuniary penalty likely to follow) for taking adverse action against him.
Justice Rangiah rejected the worker’s claims that Serco took adverse action against him for his complaints against his line manager, or that the outcome from the facilitator’s first complaint was unfair. There was a “clear and obvious basis” for the operations director to find his text messages to her, calling her his “ray of sunshine” and drawing her into his dispute with his line manager, were “inappropriate and unprofessional”.
But Justice Rangiah did not accept that the operations director genuinely believed the worker’s conduct toward the subordinate as alleged in her second complaint constituted victimisation or bullying. The director made the decision to terminate his employment despite no one responding to the HR department’s request for the subordinate to provide specific examples of how she was “being victimised, kept in the dark and not communicated with” as claimed, he found.
“[The operations director] inexplicably chose to proceed to make findings that [the worker] had victimised and bullied [the subordinate] without even the most elemental precaution of checking with [the subordinate] whether [the workers] responses were accurate and whether she maintained her complaint in view of those responses,” Justice Rangiah said.
He stressed that during the period where the worker allegedly failed to invite the facilitator to catch-ups, he met with her on a number of occasions to discuss how she was feeling at work, the type of work she was comfortable doing and what she wanted to do in the future, and also provided her favourable feedback on her performance.
He noted that as the worker had been warned his communication with the facilitator was inappropriate and overfamiliar, it wasn’t surprising that he would modify his behaviour toward her or limit their interactions.
Learnings for all businesses
Bullying claims must be handled carefully and methodically, even those that may at first appear baseless.
At the very least all claims must be treated seriously and investigated. This means seeking the input and response of the accused giving that appropriate consideration in context.
Multiple bullying claims against a person is not, in and of itself, a valid reason for dismissal.
Here to help
ACAPMA members are reminded that they can access the advice support resources and representation of the ACAPMA Employment Professionals on this issue, or indeed any other employment issue, via employment@acapma.com.au.
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by contacting the ACAPMA Employment Professionals via employment@acapma.co.au its free for members. Click here to apply for ACAPMA Membership.
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