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Commission quashes employer’s bid to suppress bullying claim

An employer has attempted to stop a worker applying for a stop-bullying order.
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Commission quashes employer’s bid to suppress bullying claim

Commission quashes employer’s bid to suppress bullying claim

22 October 2020

By Gaby Grammeno

A Commission has dismissed an employer’s bid to stop a worker applying for a stop-bullying order. The council employee sought to change his line of reporting, and believed he should not be forced to take leave on account of the alleged bullying by his supervisor.

The alleged bullying

The worker was employed by a Queensland City Council as the supervisor of a plumbing and drainage equipment section. Friction developed between him and other staff, in particular, his supervisor.

A workplace bullying complaint was progressed against him in the absence of evidence, and a further frivolous allegation of workplace bullying concerning a USB device was made against him. He felt his supervisor was undermining, ignoring and contradicting him, and a conflict of interest allegation was made against him and substantiated.

After a manager expressed concerns about his behaviour, the worker asked if his reporting line could be changed and provided medical evidence supporting such a change, but this request was denied.

From late November 2019 he was absent from work for five months on approved sick leave. While he was away, changes were made to his role and that of his team. When he returned to work, he claimed his supervisor failed to greet him for two weeks and would not give him the information he needed to perform his role, and that his workload was excessive.

On 8 May 2020 he put his complaints in writing to the Council, which promptly directed him to take personal leave until he was deemed fit to return to work without restrictions and with the same reporting line, and to attend an independent medical examination with a psychiatrist.

The psychiatrist’s report said that while he was fit to carry out his duties, it was extremely problematic to expect him to continue reporting to the same supervisor.

He was directed to attend a work meeting on 16 June 2020, where he said he was ready, willing and able to return to work. The Council representatives told him he could not continue in his role due to issues he’d raised and because his supervisor was entitled to his (the supervisor's) position. Further, the worker was informed that he was unable to meet the inherent requirements of his role. They said they would investigate redeployment opportunities, but that none were currently available.

The following day he was advised by letter that he was not permitted to attend work and must take personal leave until he was deemed fit to return to work, without any restrictions, by a suitably qualified medical specialist.

In July 2020, the worker filed an application with the state’s Industrial Relations Commission for a stop bullying order, claiming he’d been subjected to bullying by his immediate supervisor and other Council employees.

After unsuccessful efforts to resolve the situation through conciliation, the employer filed an application to dismiss the worker’s bid for a stop bullying order.

In the Commission

The Commission’s task was to decide whether the worker’s application should be dismissed on the grounds put forward by the Council, namely that further proceedings were not necessary or desirable in the public interest given that, for the time being, the worker was not in the workplace.

The Council argued that the alleged risk of bullying was speculative because the worker had not attended the workplace since 8 May. They contended that the only feasible way for Council to change his reporting lines would be to move his current supervisor to another position, which, they claimed, would not be not a reasonable outcome.

The Commission’s Deputy President took a different view, noting that the Council had given no persuasive reasons why the only feasible way to change the worker’s reporting line was to move the supervisor. He also disagreed with Council’s characterisation of the psychiatrist’s report, pointing out that the worker had also told the psychiatrist that he enjoyed his job and wanted to return to work free of reprisals and deal with any situations that remained there.

The DP’s conclusions were that the worker was not suffering from a psychiatric disorder, disputed the allegations about him and denied that he was not fit for work, and his forced exclusion from the workplace amounted to bullying.

The Commission dismissed the Council’s application to quash the worker’s bid for a stop bullying order. The worker’s application will be considered at a future date.

The bottom line: Staff conflict can be very thorny territory for management, and great care should be taken in responding to allegations and resolving grievances, to avoid them escalating, if possible, into claims of bullying.

Read the judgment

Wilkins v Council of the City of Gold Coast [2020] QIRC 172 (1 October 2020)

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