Conflict between new manager and staff
A sales assistant at a jewellery store had been promoted to the role of supervisor on February 2018. There had been no store manager until March 2020. Conflict began to arise between the store manager and the three members of the staff, particularly with the supervisor.
All three members of staff sent letters of complaint to the store owner against the store owner. The store owner directed the staff to submit individual complaints instead of one joint complaint as the matter was supposed to be confidential.
Dissatisfied with the investigation conducted by the store owner, the supervisor on 27 May 2021 filed an application for an anti-bullying order under s.789FC of the Fair Work Act 2009.
Defence raised by the store manager and the store owner
The store manager defended himself and said that work performance by the staff was of low quality. He was only correcting the staff however, the staff members, specifically the store supervisor, took comments on their work performance personally. The staff was uncooperative and dismissive. The store manager believed that the animosity displayed toward him by the supervisor was due to the fact that the supervisor wanted to be named store manager herself.
Who can apply for an anti-bullying order?
The anti-bullying order can be issued when it is applied for by any worker. For the purposes of the Work Health and Safety Act 2011, a worker is any individual who performs work in any capacity, including employees, contractors, apprentices, trainees, students and even volunteers.
Unreasonable behaviour is considered bullying behaviour
The test of whether the management action is reasonable is not whether the act could have been undertaken in a more reasonable or more acceptable manner. There is bullying when there is unreasonable behaviour toward a worker and the unreasonable behaviour creates a risk to the health and safety of workers.
The behaviour is “unreasonable” when it is unlawful, irrational, absurd, or ridiculous. Reasonable actions may also be considered as unreasonable behaviour when the reasonable action carried out in an unreasonable manner.
Acts of 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 are all acts that are unreasonable and are thus, considered as bullying behaviour.
When anti-bullying orders are issued
The stop-bullying order will issue if there is a finding that, indeed, the worker had been bullied at work and that there is a risk that the worker will continue to be bullied at work.
Telling employees to apply at another store is unreasonable behaviour
The manager kept telling members of staff to go and work for a competitor. He introduced them to the manager of a competitor store and after, he told them to apply at that competitor’s store. He then told the staff members that the competitor paid higher wages so they should apply there. This made members of staff uncomfortable and the Fair Work Commission accepted this as an example of unreasonable behaviour.
Laughing and taunting staff members is unreasonable behaviour
The management instructed the supervisor that she will no longer do the employees time sheets even if she had done that task in the past. This was because the store manager had finished his probationary period and the time sheets would then be the responsibility of the manager.
After being informed, the supervisor wondered why the task she had always done was suddenly given to the store manager. The store manager laughed at the supervisor and taunted her saying that he now enjoyed the trust of the store owner and the supervisor did not.
While the court accepted that reassigning the task from the store supervisor to the store manager was reasonable and in line with the store manager finishing his probationary period, the store manager’s laughter and taunting statements were made to ensure that the supervisor understood that she was not in-charge and was in fact subordinate to the manager.
Following staff members around a small store was unreasonable behaviour
The store manager followed the supervisor all around the store while she did her duties. This made the supervisor feel uncomfortable as there were mirrors and CCTV cameras all over the store. The store was small enough that when the manager was in the back of the store, he could still hear the conversations in the selling area.
The Manager did not need to follow the supervisor around. And if he did so only to evaluate the supervisor’s work performance, then the manager should have provided feedback but he had not. The supervisor had complained about the behaviour and took a day off from work. After which, the unwanted behaviour from the store manager had stopped.
Putting hand in front of a staff member’s face was unreasonable behaviour
The store supervisor spoke to the manager asking him why he had rescheduled the pick-up date of a watch that her customer had purchased. The manager said that it was the client who had called to pick-up the watch on a different date. When the supervisor wanted to discuss the matter further with the manager, the manager put up his hand in the supervisor’s face and said, “Stop.” This gesture showed great contempt and was unreasonable behaviour.
Putting reprimands on company messaging app was unreasonable
A customer came into the store whom the manager personally knew. Even when the supervisor was already attending to the customer, the manager came and spoke to the customer. While attending to the customer, the manager made a mess on the counter. Instead of telling the supervisor to clean up the mess, he took a picture of the mess and posted it on the Slack messaging application that all the staff at the different stores used. This behaviour was meant to humiliate the supervisor in front of the other members of staff and even the owner and senior managers who also used the messaging application.
Putting the reprimand and instruction on the messaging application for all to see when the manager could have instructed the supervisor to clean up the mess verbally was unreasonable. Further, the manager also issued the supervisor a final warning regarding untidiness after he had posted the picture and the accompanying reprimand. The final warning for untidiness was issued several days after the incident. This was also unreasonable behaviour.
Withdrawing a final warning and replacing it with another final warning was unreasonable behaviour
A few days later, the manager withdrew the final warning for untidiness only to replace it with another final warning against the supervisor for having closed a display cabinet forcefully despite having been instructed to close it gently. The withdrawal of the first final warning and the immediate issuance of a second final warning that had no reasonable factual basis were acts calculated to intimidate, scare, and shock the supervisor. The issuance of the warning was not issued with attending procedural fairness.
Telling staff member to “Shut up” is unreasonable behaviour
The supervisor arrived for her shift at 11 am and was instructed to check warranty cards. She did the task until 4pm. Feeling hungry, she asked her manager for a lunch break to which he had agreed. While the supervisor was out for lunch and the manager was attending to a customer, a new customer walked into the store.
When the supervisor returned from her lunch break, the manager told her that her behaviour of leaving for her lunch break had caused them a sale. The supervisor wanted to discuss the matter but the manager told the supervisor “Shut up.” This was unreasonable behaviour.
Issuing a PIP without basis and without procedural fairness was unreasonable
The manager issued the supervisor a Performance Improvement Plan but failed to tell the supervisor in particular what behaviours she had done wrong. The issuance of the performance improvement plan was not warranted, especially one with a threat of a final written warning when neither the manager nor the store owner could state what behaviours or actions the supervisor did that caused her poor performance that merited being placed on the PIP.
Ignoring greetings and using staff member as an example of bad etiquette in a meeting are both unreasonable
The manager refused to reply to a “good morning” greeting made by the supervisor but replied to the greetings of the other staff members. The next day, the supervisor kept repeating the greeting until the manager acknowledged it. On Slack, the store owner mentioned that it was the manager’s personal choice to respond or not to a greeting. And in a staff meeting, the manager kept using the supervisor as his example in discussing wrong etiquette. The store owner then issued a directive that endorsed the rude and inappropriate behaviour of the store manager. This was an unreasonable behaviour.
The FWC issued the anti-bullying order as applied for by the store supervisor.
Tao (Selina) Qu v Monards Pty Ltd; Tak Wing Wong  FWC 4507 (27 July 2021)
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations