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Friday Workplace Briefing

When Does Managing Conflict Tip Over to Bullying?

For this week’s Friday Workplace Briefing Andrew and Nina analyse when managing conflict tips over to bullying.

In a recent case before the FWC, an employer’s sometimes flawed attempts at managing an employee and the conflict that followed was held to not be bulling. Where do you draw the line, and does it matter for other workplace law like workers’ compensation, general protections and safety law?

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: We’ve got a couple of cases, but there is a specific case that’s come out on this recently, which talked about bullying, and I think it’s Tidmarsh v Aspire 2, isn’t it?

Nina Hoang: Yes.

Andrew Douglas: Or is that the-

Nina Hoang: No, no, application by Brinkworth.

Andrew Douglas: It’s application by Brinkworth. Sorry, that’s my mistake. So in application by Brinkworth, there was a person who started work, had some skills, was repeatedly given work beneath their skills.

Nina Hoang: Yeah, and trained in stuff they already knew.

Andrew Douglas: They knew.

Nina Hoang: Yeah, like weird micromanagement.

Andrew Douglas: Yeah. Well that’s the version that we hear.

Nina Hoang: Yeah.

Andrew Douglas: I guess, to be perfectly honest, even when on leave, she was given other people to supervise her who were suppliers.

Nina Hoang: Yeah.

Andrew Douglas: And there was some behaviour which was blunt. Now the evidence came out in the case that the actual supervisor did have some really good reasons as to why that occurred. So that controversial evidence, we can wash that away.

What it came down to is the nature of the persistent conduct and the bluntness in which the orders were given was beyond what you would expect would be reasonable.

And the question is, was it bullying? So was it repeated behaviour? Yes.

Would it affect a reasonable person? Would it hurt, humiliate or not? I think the answer is here, they’re saying no, she was a particularly sensitive person that wasn’t quite at that level. And finally, did it affect their safety at work? Well, it did affect her safety at work.

But the second test, the objective test is what it did in the past. So the court held, or the Fair Work held that this was not bullying, but went to this issue of context. And I think that’s the big issue, isn’t it?

Nina Hoang: That’s so important, yeah.

Andrew Douglas: The fact is, if we work in an environment where Nina and I swear all the time and are aggressive in the manner in which we deal, so long as I’m not aggressive at Nina and the language is vulgar language, it’s all sorts of things but we use it all the time, it ain’t going to be bullying. In fact it ain’t going to be anything ’cause it’s condoned and permitted, and so-

Nina Hoang: Under Fair Work, yeah.

Andrew Douglas: Under Fair Work. So the issue, but if I change that language, so if I say, oh, that person was an idiot, bloody idiot, blah blah blah blah, not language I should use.

But if I say to Nina, you are a bloody idiot, all of a sudden I’ve changed from a generic language to something which is hurtful. I’m afraid, even though the language is the same, the nature of harm makes it a psychological hazard. The moment it becomes a psychological habit, it ticks the second box of what is bullying, it could hurt, humiliate, or intimidate, ’cause it’s a psychological hazard.

Nina Hoang: Yeah.

Andrew Douglas: And then you’re racing towards bullying, okay?

Nina Hoang: But Andrew, isn’t it true that it also, yes, context would also depends on that person, right? So if you’re aware that something particularly was sensitive to them and in the context people make jokes, but you made something that, that could still be considered bullying-

Andrew Douglas: Absolutely.

Nina Hoang: In that context, yeah.

Andrew Douglas: Absolutely. Because remember, if we just break the criteria down again,

Nina Hoang: Yeah.

Andrew Douglas: Was it repetitive action?

Nina Hoang: Yes.

Andrew Douglas: Yes it was.

Nina Hoang: Directed at someone, yeah.

Andrew Douglas: The objective test in the second part, would it hurt, humiliate, intimidate? Was it unreasonable? Goes to the eggshell skull. So it goes to the person you’re doing it to, if it relates to them.

Nina Hoang: Yeah.

Andrew Douglas: So not if I’m just talking out here, but if I say to you, Nina, I… you know green coats, I hate green coats, and I know that you feel very sensitive about green coats, I just chose that today.

Nina Hoang: This was left to me by my grandma.

Andrew Douglas: Yeah, that’s right. And I say no one would wear their grandmother’s coat. Anyway, but my point about it is the moment you direct it at somebody, then the eggshell skull comes in. Then you take the person as you find them and therefore it is unreasonable per se, and you have bullying. And it sort of, can I just say it sort of doesn’t matter except for the jurisdiction of bullying, whether it’s bullying because whatever it is, all of that was misconduct.

Nina Hoang: Yeah.

Andrew Douglas: Okay? The nature of that behaviour could never be reasonable in management, so workers’ compensation-

Nina Hoang: Would apply regardless.

Andrew Douglas: The Fair Work Act, anything that’s discrim, all of the law is in play, you don’t have to bully to be in trouble.

Nina Hoang: Yes.

Andrew Douglas: And I guess that’s what I want to take out of this, that is when people act badly, contextually or not, if it’s something that’s always done, then someone needs to draw a line in the sand and say stop it.

Nina Hoang: Yeah.

Andrew Douglas: And make it thereafter misconduct.

Nina Hoang: Yep.

Andrew Douglas: Because at the moment you’ve got condonations so there is no misconduct.

Nina Hoang: Yeah.

Andrew Douglas: The moment you say it’s misconduct, then follow through. But the moment it’s directed at somebody, it’s misconduct simpliciter. It is just misconduct. It is wrong, it is harmful.

Nina Hoang: Yeah.

Andrew Douglas: And it must be dealt with, okay? And unfortunately in this loose environment, this contextual environment where people are rude, too often they will make comments about a person or something, in that jocular way, which does hurt the person and is directed at them. And I’m afraid at that stage you take the person as you find them.

Nina Hoang: Yeah.

Andrew Douglas: Anyway, that’s it for today on that.

Nina Hoang: Onto the case study.

Andrew Douglas: Let’s go onto the case study.

Nina Hoang: So…

Cam was a boner in a meat processing business that exported to Japan. The business was called CleanPak Meats (CM). The Japanese client’s meat hygiene and handling rules included an absolute ban on employees from vendors having facial hair. The rules relied on scholarly research that showed even in the best meat works, with proper hair restraints, the transmission of foodborne disease was higher than environments which insisted on clean shaven employees, shaved within the last seven days.

The nature of the fine automated Wagyu cutting machines placed employees’ face close to the gearing of the cutting machine.

Andrew Douglas: I just want to choose your favourite meat, that’s all.

Nina Hoang: Although the machines were guarded, hair is fine and there was a small chance if hair was very long, it could lead to accidental entanglement. Cam had a heavy growth of facial hair. If he didn’t shave, he had the beginnings of a beard within seven days.

His foreman, Trev, was not a man to mince words (sorry for the pun).

So cheesy.

He regularly told Cam he needed a shave. It was not a gentle reminder, but it is difficult for Cam as he had sensitive skin. If he shaved more than once a week, his skin would become dry, scaly and hurt. Cam tried to explain that dry, scaly skin was as big a risk as a beard, so lay off him, he would shave once a week.

Trev was relentless, called him the gorilla, spoke frequently at toolbox meetings and pointed to Cam saying words like, “Don’t be an ape, be a man, shave.”

Cam spoke to Jen in HR and also to the ops manager, Diane. He explained the constant behaviour of Trev was unwelcome, hurtful, embarrassing, and explained his health condition and the risk of over shaving. He gave them a medical report, very brief, explaining his contentions and saying he was fit to work if he shaved once a week. Diane and Jen checked with head of Food Handling and Hygiene who said seven days was the absolute limit. Reassured they all walked away, Diane spoke to Trev and advised him of the rule.

Trev didn’t give up. He watched him, kept asking him what day he was up to in shaving. After four weeks, Cam felt anxious, unwell and distressed.

Andrew Douglas: Why are you being so tough? Cam’s distressed and you’re laughing.

Nina Hoang: Yeah, but it’s funny knowing someone’s watching how long he’s in between shaves.

He saw his doctor who said he was suffering from a virus and had depression and anxiety caused by his treatment at work. He took four days off, he gave him a certificate to that effect.

When returned to work, Trev confronted him. He said it was six days ago, no shave before you went away. Now you have been away a total of five more days. That is 11 days without a shave. And you have willfully and deliberately disobeyed a lawful direction. You are to attend Diane’s office at 2:00 PM today to show cause why your employment should not be terminated.

Cam said, “I will save you the trouble. I’m going home.” and left work.”

Gosh, should we ever get a case like this, I probably wouldn’t stop laughing.

Andrew Douglas: All right, poor Cam. I hope he doesn’t come to us. All right one, has Cam resigned?

Nina Hoang: No, it’s one of the heat of the moment things.

Andrew Douglas: Yeah.

Nina Hoang: They’ve got to check.

Andrew Douglas: I know we were doing this a couple of weeks in a row just to remind people, so not a resignation. If he comes in tomorrow, you’d be kind to him, generous.

Nina Hoang: Yeah.

Andrew Douglas: See what he wants to do. But you wouldn’t accept him.

Nina Hoang: Like it could be, you checked and he said yeah, I did want to,

Andrew Douglas: Yeah, I just can’t be there.

Nina Hoang: But the key is to check, yeah.

Andrew Douglas: And by the way, if he did say, you’ve got a shocking constructive dismissal running at you.

Nina Hoang: Yeah.

Andrew Douglas: Yeah, so be aware of that.

Did Cam commit an act of serious misconduct in not shaving? Could he be safely terminated?

Nina Hoang: So stupid.

Andrew Douglas: What do you reckon there?

Nina Hoang: Well, technically it’s a breach of lawful, or I don’t know if it’s lawful, I don’t think it was a reasonable direction though. I don’t think they did enough consultation with him, about the safety stuff.

Andrew Douglas: Oh no, I’ll tell you what I reckon. I reckon it’s a lawful and reasonable direction.

Nina Hoang: Do you?

Andrew Douglas: And, no, wait for it, but I’m going to come back to it.

Nina Hoang: Okay.

Andrew Douglas: Okay? So lawful and reasonable direction. I think it’s also under regulation 107, brings the business into risk. So there’s two base problem.

Nina Hoang: No.

Andrew Douglas: But the problem is, yes, it’s a valid reason.

Nina Hoang: I think it’s harsh.

Andrew Douglas: Yeah, but it’s harsh. And it’s harsh because the guy’s just gone off, ’cause you’ve hurt him.

Nina Hoang: Yeah.

Andrew Douglas: And he’s probably not thought about it and what he should have been is sent home to have a shave.

Nina Hoang: Well, I also feel like they could have implemented other controls and there’s been no consultation about any of that, so I don’t think it is that reasonable direction.

Andrew Douglas: Yeah. Well we just, the other controls isn’t actually part of this.

Nina Hoang: Yeah, well, we should’ve written them in.

Andrew Douglas: So don’t make it hard, Miss Safety, just leave it alone, will you?

Nina Hoang: Was Cam bullied, like I’m being bullied right now?

Andrew Douglas: Yes he was. Thank you for that.

Nina Hoang: Did Trev and Cam have safety issues? And if so, what?

Andrew Douglas: If Cam should die from pressure placed on him by the business, what would be the safety consequence? So does Cam have a safety issue? Small one about not shaving, not a problem, okay? He’s not going to be prosecuted.

Does Trev and CM, which is, I think that what’s meant to be the business, have really big issues in safety?

Nina Hoang: Yeah.

Andrew Douglas: They have very, very significant issues around safety, and would be prosecuted on the psychological hazards behaviour that exists. And I think Trev under these circumstances unquestionably would be, this is sort of the-

Nina Hoang: Like reckless endangerment.

Andrew Douglas: Yeah. This is the sort of Victorian Building Authority gone wild, if that makes sense? Yeah, it’s the next stage on.

So, I guess one of the reasons I drafted this case is to show where psychological hazards is going. This is behaviour which we know exists in a whole lot of organisations, where a supervisor gets it in for someone and treats them badly, and where for a long time people have gone, oh, it’s just a personality clash.

Well, this case shows it’s not just a personality clash. This is one where Trev could be in jail, and the organisation could be facing massive fines.

Nina Hoang: Yeah, and I think it’s also an example of when, they’re using what is technically a lawful thing but using it in an unreasonable manner.

Andrew Douglas: Yeah.

Nina Hoang: And that’s exactly what we spoke about in our main topic. But it’s very easy when you’re frustrated with someone to use any kind of excuse to focus on them, but remember workers come first. If it’s not reasonable management action, you’re still going to lose.

Andrew Douglas: Okay, well then I’ll get to the next question.

Nina Hoang: Oh sorry.

Andrew Douglas: No, that’s all right. You answer any question you like. Okay, can we have the next question please, Seb?

Nina Hoang: It was not the next question.

Andrew Douglas: No, no, no, you actually jumped two ahead. Does Cam have a good general protections claim? Yes he does, he’s raised the concern and was treated badly afterwards.

Nina Hoang: And went on leave as well.

Andrew Douglas: Yeah, does Cam have a good workers’ compensation claim? What do you think?

Nina Hoang: No, I don’t know.

Andrew Douglas: Yeah, he does. Does Cam under Kozarov’s case, so faced with constant attacks, ones that, yeah, yes,

Nina Hoang: Yeah.

Andrew Douglas: Fantastic common law claim, and fatal accident’s claim if he was to die.

Nina Hoang: Yeah, and that’s it.

Andrew Douglas: There you go. And we’re on time as always.

Nina Hoang: Yeah.

Andrew Douglas: Thanks very much then. And are you back next week?

Nina Hoang: No, I’m going to ask Kim to do it.

Andrew Douglas: Well, it’s good that I know. Anyway, see you, later thumbs up and thank you very much

Nina Hoang: Bye, big thumbs up.

Andrew Douglas: Bye-Bye.

Nina Hoang: Thank you.

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