Manager yells at worker in office, calls it 'performance management'
The Fair Work Commission (FWC) recently dealt with an application made by a worker for an anti-bullying order under s 789FC of the Fair Work Act 2009.
The worker, an employee of Yarra City Council, contended that at various times from September 2023, he was subjected to bullying by his employer and its infrastructure manager.
The employer denied that the worker was bullied and opposed the making of an order. It said that the manager was merely frustrated at the worker’s performance and that it was part of the former’s job to “manage people.”
Background of the case
Under the Fair Work Act 2009, a worker is considered to be "bullied at work" if an individual or group of individuals repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.
The FWC is empowered to make an anti-bullying order if it is satisfied that the worker has been bullied at work and that there is also a risk that the worker will continue to be bullied at work.
The worker, who had been employed by Yarra City Council for 25 years, gave evidence about the circumstances, which he believed amounted to bullying. He claimed that the infrastructure manager yelled at him in front of other employees, accused him of making numerous mistakes without providing details or evidence, and removed him from his role as the manager for public lighting projects.
The worker also alleged that he was unfairly required to come into the office five days a week while other employees were allowed to work from home.
The worker said that this conduct left him feeling anxious whenever he needed to be in the office and that he had developed insomnia and high blood pressure. He had been on sick leave since February 2024.
Employer’s defence against bullying
The FWC said that the employer's manager of people and culture gave evidence that the Council did not consider that the worker had been subjected to bullying.
She stated that the requirement for the worker to attend the office five days a week was a means of managing his performance and providing him with appropriate support.
The infrastructure manager acknowledged that he had raised his voice but expressed remorse for doing so. The FWC noted that "raised voices are to be avoided in the workplace, but rare deviations should not be judged too harshly."
It also found that the employer took the worker's complaint seriously, investigated the matter, and reached a reasonable conclusion.
However, the FWC stated that "in my opinion, the Council should have told [the worker] which allegations had been upheld in part and why. This might have helped him to put the matter behind him."
Is it considered bullying conduct?
The FWC made several key findings in this case. It accepted the infrastructure manager's evidence that he raised his voice on two occasions but not to the point of yelling. The FWC determined that even if the two instances of raised voices amounted to repeated unreasonable conduct, they did not amount to bullying because there was no persuasive evidence that they caused a risk to health and safety.
The FWC also found that the employer's concerns about the worker's performance were genuinely held and that the requirement for him to attend the office five days a week was reasonable.
It noted that "it is not unreasonable for a manager to express a sincerely held opinion about a worker's performance or capacity. That is core business for a person whose job involves managing people."
Ultimately, the FWC was not persuaded that the worker was bullied at work or that there was a risk of future bullying. The jurisdictional requirement in s 789FF(1)(b)(ii) was not established, and the application was dismissed.
The FWC emphasised that "the Commission must make an objective assessment of the evidence and make findings based on the balance of probabilities."
It said that while the worker genuinely believed he had been subjected to bullying, the evidence did not support this conclusion.
The decision highlighted the importance of communication and understanding in the workplace, with the FWC stating that "the Council wants [the worker] to return to work and that it does not want [the worker] to feel like he is looking over his shoulder."
The FWC also considered that the worker should allow the employer to seek further information from his doctor about how it can facilitate his return to work.
