Dismissal following Workplace Bullying Complaint found Unfair

For both employers and employees complaints of workplace bullying are serious matters.  In some instances complaints of bullying lead to the lodgement of workers compensation claims or disciplinary action including dismissal for the person responsible for the bullying behaviour.  While complaints of bullying should be investigated, employers faced with a complaint of workplace bullying should be careful to ensure that the evidence of a complaint of bullying is properly assessed before disciplinary action is taken.

As part of the assessment of the complaint, it has been suggested in a recent decision of the Fair Work Commission, that employers should also consider whether a complaint is made as a result of an employee’s excessive sensitivity or lack of resilience.

In Harris v WorkPac Pty Ltd [2013] FWC 4111 Commissioner Cloghan considered a claim for unfair dismissal after Mrs Harris had been dismissed from her employment following complaints by a fellow employee that Mrs Harris had bullied her by:

• swearing and screaming at her;
• belittling her;
• embarrassing and humiliating her in front of others; and
• complaining about her to get her into trouble.

The complaints from the fellow employee were made during an exit interview following the fellow employee’s resignation in early December 2012 and raised earlier complaints of bullying behaviour from 17 months earlier. No action had been taken by the employer in respect of the earlier complaints.

Acting on the complaints made during the exit interview, the employer required Mrs Harris to attend a meeting where the allegations of bullying were raised. Despite Mrs Harris’s denial of the allegations, she was summarily dismissed from her employment the following day.

After hearing the claim, the Commissioner ultimately determined that Mrs Harris had been unfairly dismissed as the Commissioner was not satisfied that the bullying conduct alleged against Mrs Harris had occurred. In his reasons, the Commissioner noted that there was conflicting evidence from witnesses regarding the alleged bullying, a lack of contemporaneous records of the alleged bullying and no record of the reasons why the employer formed its view that bullying had occurred.

In reaching his decision, the Commissioner considered that while employers should investigate complaints of inappropriate behaviour, employers should be mindful that just because an employee claims to have feelings of hurt, embarrassment or humiliation that does not automatically mean the employee responsible for those feelings is guilty of bullying and gross misconduct which warrants disciplinary action.

The Commissioner also noted that some of the behaviour complained of occurred at a time with Mrs Harris’ husband was seriously ill in hospital and the complaining employee was described by coworkers as being a sensitive person. The Commissioner put his view that the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. In the words of the Commissioner “the workplace comprises of persons of different ages, workplace experience and personalities – not divine angels”.

The comments of the Commissioner in this decision indicate that before the Commission will be satisfied that complaints of workplace bullying justify an employee’s dismissal, the Commission will require proof of something more than a few harsh words exchanged as part of difficult working relationships between employees.