Business Toolbox

Case facts 

#Case 1. In an application by Kavita Sharma [2024] FWC 2634, it was alleged that two Winfer Protection Pty Ltd T/A SAI Security employees (one of whom subsequently resigned) had bullied Mrs Sharma, who was employed as a chief financial officer. It was alleged that General Manager Operations Steve Moss had behaved unreasonably in the manner in which he dealt with her, including: 

• Constantly questioning her capabilities, dominating discussions, undermining authority; 
• Tone of emails and calls were hostile and demanding;   
• Making repeated attempts to change the organisational structure by removing staff whom she managed, her duties and responsibilities;  
• Making repeated attempts to have her report to him rather than her direct manager;   
• Providing work with unachievable deadlines and unreasonable demands; and 
• Treating other staff poorly who she alleged were constructively terminated. 

In response, Winfer Protection Pty Ltd T/A SAI Security supported the applicant's claims, finding Mr Moss had attempted to narrow Mrs Sharma’s role down to a much lower level of credit/debt collections officer, and that attempts to performance manage Mrs Sharma had no basis.  

#Case 2. In an application by Inderjeet Kaur [2024] FWC 3096, it was alleged that Bupa Aged Care Australia Pty Ltd and General Manager Seena Perukamalayil Joy had bullied Ms Kaur, a casual nurse. Ms Kaur claimed Ms Joy responded in an inappropriate manner to workload and staff shortage concerns and treated Ms Kaur unfairly in relation to a workplace investigation into the monitoring and care of a resident who later died. Bupa rejected the bullying claim and submitted that all of Ms Joy's actions were reasonable. Ms Kaur's argument for behaviour amounting to bullying included five complaints: 

• Ms Joy's verbal responses to Ms Kaur raising concerns regarding staff shortages; 
• Ms Joy's email response to Ms Kaur's proposal regarding work allocation; 
• Ms Joy selecting Ms Kaur for investigation and suspension over the workplace incident; 
• The differential treatment in relation to the investigation and suspension which involved the day shift registered nurse (RN) not being subject to suspension and investigation; and 
• The differential treatment in relation to the investigation and suspension which involved the night shift RN not suspended and returning to work earlier than Ms Kaur. 

The decisions 

#Case 1. The FWC found that the Applicant provided detailed evidence that the impact had been harmful, distressing, humiliating, intimidating, and far reaching. The FWC accepted that Mr Moss unreasonably restructured the business, removed duties and responsibilities from the applicant. The repeated behaviour was established through a clear timeline and evidence and included multiple emails sent by Mr Moss, that he continued to send whilst he was on stress leave.  

The FWC found that it was likely the applicant would continue to be bullied at work and as such made a Stop Bullying Order as they were satisfied that repeated unreasonable conduct had occurred and that there was an ongoing risk to the health safety of the applicant.  

The order made by the Commission required the respondent to implement a comprehensive anti-bullying policy; ensure all existing employees receive training in the policy; and a process is implemented for all staff to receive regular refresher training at least annually but no less than biannually. An order was also made to Mr Moss that he was not permitted to communicate with the applicant, and that all communications must be directed to the applicant’s direct manager. If Mr Moss did return to work, he was required to behave in a civil and professional manner. 

#Case 2. The FWC found that none of the complaints alone constituted unreasonable behaviour for the purposes of bullying and there was no evidence to support repeated unreasonable behaviour. Ms Joy's behaviour towards Ms Kaur was not repeated, unreasonable behaviour and therefore not bullying. As a result, the FWC did not grant a Stop Bullying Order.   

The FWC recommended that Ms Joy improve communication in response to the concerns raised by M Kaur, and to ensure employees are treated fairly, consistently and with transparency during investigations and suspensions.   

Key takeaways 

#Case 1. To establish whether a Stop Bullying Order should be made by the FWC it must be substantiated that the individual was behaving unreasonably, the behaviour was repeated, the behaviour creates a risk to the health and safety of the applicant, there is a risk that the applicant will continue to be bullied at work and that the employer has failed to stop it from happening. It is important for employers to have anti-bullying and grievance policies and procedures and to train staff in those so bullying can be prevented in the workplace.   

#Case 2. Reasonable management action carried out in a reasonable manner recognises that management is entitled to give reasonable directions for running a business. Reasonable management action carried out in a reasonable manner includes:   

• That management actions do not need to be perfect or ideal; 
• Whether the course of action is still a reasonable action even if certain steps are not; 
• Actions must be lawful and not irrational or absurd; 
• Whether management action involved a significant departure from the established policies or procedures and whether that was reasonable; 
• The facts and circumstances requiring the action; 
• The way in which the action impacts the workers; and 
• The circumstances in which the action was implemented. 

Due to the importance of establishing a workplace free from bullying and harassment CCIWA strongly recommends that employers contact the Employee Relations Helpline on 08 9365 7660 or via [email protected] for general advice or Business Law WA for legal advice.