In response to an application to stop bullying, the Fair Work Commission (FWC) has the power to make any orders it thinks necessary to prevent workplace bullying from continuing. The FWC’s exercise of this discretionary power has resulted in some interesting orders over the years, including requiring employees to greet each other in the mornings or directing that an employee stop exercising at work in the vicinity of another employee.

In a more recent decision, the FWC dealt with a stop bullying application concerning “unusual circumstances” which resulted in orders that a managing director stop instructing or directing an employee in the performance of her work, including through his lawyers.

In Mrs Taylor [2019] FWC 1794, an HR Manager / Finance and Administration Manager made a stop bullying application against her employer, Hoad Water Cartage Pty Ltd, and its managing director. The application was made following the breakdown of the managing director’s marriage with his wife, who was also the Director of Finance and co-owner of the business.

The FWC heard that the employee’s role required her to work closely with and directly report to the Director of Finance. However, when the directors’ marriage broke down in November 2017, the managing director became increasingly critical of the employee’s professionalism, believing that she was involved in a conspiracy with his wife to remove him from the business. His conduct was alleged to include:

  • a failure to respond when another employee, in his presence, called the employee “that f*cking woman” on more than one occasion;
  • rude, belittling and humiliating communications towards the employee, which made her feel personally and professionally insulted and humiliated – for example:

you have both had a serious and negative effect on the morale and confidence in the company that I founded in 1988”;

would you both stop wasting my time, why do you have to make things so complicated”;

I have taken offence to your previous email … in no other workplace would your bad behaviour and total lack of respect towards your employer be tolerated … this matter is now closed. Do not reply to this email.”;

stop wasting my time with trivial crap”; and “stop giving [the Director of Finance] false, misleading and unprofessional advice!!

  • persistent questioning of the employee about the matrimonial issues despite the employee requesting multiple times that their discussions be limited to business;
  • directions that the employee not engage with operations staff (even though this was a necessary part of her role), excluding her from involvement in recruitment matters, and failing to respond to her concerns about this exclusionary behaviour; and
  • unfairly criticising her and scrutinising her work, including requiring her to provide a daily list of tasks even though no other employee was required to do so, and there was no evidence that she was failing in her duties.

The employee eventually reduced her contact with the managing director to email only and worked from home. However, when this did not improve the work environment, she requested advice from SafeWork SA. The employer was issued with three Improvement Notices requiring it to put in place a safe system of work to minimise the risk to psychological health in the workplace and to conduct training.

Despite these improvement notices, the managing director continued to criticise the employee’s work through email, and proceeded to copy the employer’s accountant into some emails, and his personal lawyer in others.

In mid-2018, the Federal Circuit Court of Australia made orders in relation to the matrimonial dispute, which included that the managing director was not to provide any instruction or direction to the employee in relation to the finance and administration side of the business except for those matters that related to operations (which he was in charge of).

In September 2018, when the employee suggested that only the Director of Finance could direct her on finance and administration, the managing director considered this to be insubordination and issued her a formal warning through his lawyers.

The employee then filed her stop bullying application the next day.

Notwithstanding this application, in November 2018, the managing director directed the employee to investigate an incident into the conduct of the Director of Finance in driving a vehicle dangerously in the workplace. He considered her investigation unsatisfactory, and asked her to prepare a formal written warning to be given to the Director of Finance. The employee sought legal advice and refused to comply with this direction on the basis that it was unreasonable. As a result, the managing director instructed his lawyers to issue the employee with a second warning letter.

The employee was diagnosed with stress and anxiety shortly after this and was placed on light duties. The managing director then sent her approximately 50 emails requesting that she process his expense reimbursements, which triggered the employee’s condition and rendered her unfit to work for two weeks.

The FWC was satisfied, based on the above, that the managing director had engaged in bullying conduct towards the employee, and found in particular:

  • the content and autocratic tone of his emails, which was aggravated when others were copied into the emails, was bullying;
  • it was unreasonable for the managing director to expose the employee to the vitriol of their matrimonial issues as soon as she told him she felt uncomfortable and asked him to stop;
  • irrespective of whether it was lawful or not to issue directions to the employee, the managing director’s criticisms and scrutiny of her were unreasonable and sending her 50 emails seeking expense reimbursements “drove her into the hands of her doctors”; and
  • the warning letters were unreasonable threats of dismissal that were used to “intimidate [the employee] to the greatest degree possible” and to test her loyalty “in an act of gamesmanship”, noting that if the managing director was serious about disciplining his co-owner, he could have asked his lawyers to do so.

In circumstances where the managing director had expressed no remorse for his conduct and still believed that the employee was part of a conspiracy against him, the FWC considered that there was a real risk that the employee would continue to be bullied at work and stop bullying orders were warranted.

Accordingly, the FWC made orders to the effect that:

  • neither the managing director nor any person acting on his behalf or instructions was to take any action in relation to the employee’s employment or to instruct or direct her in relation to the performance of her duties;
  • the managing director was to communicate with the employee only by email and about work-related matters or business, and was not to instruct his lawyers to do so;
  • the managing director was to communicate with the employee in a professional, respectful and business-like manner and not be abusive, rude or harassing, and was not to denigrate or disparage her to anyone else in the business; and
  • the employee be permitted to perform the full range of her duties and that the managing director not restrict or limit her from communicating with persons necessary to perform her duties.
Lessons for employers

This is another example of the wide discretion that the FWC has under the anti-bullying provisions of the Fair Work Act 2009 (Cth) in relation to the types of orders it can make to stop bullying. As has been stated many times before, the purpose of these types of applications is to prevent further bullying and the FWC quite understandably has now made orders to which the managing director and anyone acting on his behalf or instructions (including his lawyers) are now subject.

 

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