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Perception of bullying not supported by credible evidence

The FWC has dismissed an application for a stop bullying order.
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Perception of bullying not supported by credible evidence

Perception of bullying not supported by credible evidence

4 December 2020

By Gaby Grammeno

The Fair Work Commission has dismissed an application for a stop bullying order, finding that although a worker believed he had been victimised and bullied at work, there was insufficient objective evidence to support his allegations. Instead, the commissioner found the disciplinary action of his employer in response to the worker’s Facebook posts to be fair and reasonable management action.


The allegations of bullying

The worker was employed as an alcohol and other drugs counsellor with a community health service. On 17 March 2020 he took sick leave due to suspected coronavirus symptoms. He emailed the general manager advising that he had been tested for COVID-19 and was directed to self-isolate.

Later the same day, a co-worker reported a post on the absent worker’s personal public Facebook page stating that a ‘client at work just came back from China and tested and has it then in two days I felt funny’.

At the direction of the general manager, a senior psychologist contacted the worker to understand the link between the client and the reported symptoms. This phone call was intended to ensure that the employer complied with its duty of care to its employees and clients, including compliance with its obligation to report cases of COVID-19 to the Department of Health and Human Services.

On his return to work he was given a letter outlining his employer’s concerns about two issues: his posting on Facebook, and failure to follow the sick leave policy. He was asked to attend a formal disciplinary meeting on 30 March 2020 to discuss these allegations.

On the day of the meeting, another employee reported a further post on the worker’s Facebook page which identified him as an employee of the community health service. The post was described by his employer as racist, and contrary to its Code of Conduct. Concerns over the published material caused his employer to take disciplinary action.

The worker attended the meeting with a support person and advocate. He denied responsibility for the posts on his Facebook page, claiming they had been posted by his ex-wife without his knowledge.

The following day, he was sent a show cause letter setting out the allegations and seeking a response.

In his response, the worker again denied making the Facebook posts and complained about the telephone call from his co-worker, describing it as aggressive interrogation while he was home sick with a headache and while under stress of a potential coronavirus assessment. He described the meeting on 30 March as an unsuccessful mediation event and unprofessional conduct by his employer, and advised that he was stressed and that his GP informed him that he needed to be on WorkCover.

He then lodged a workers comp claim, alleging that the meeting and behaviour by three staff towards him constituted bullying. He sought a written apology from his employer, and applied for a stop bullying order.


In the Commission

The Fair Work Commission considered the worker’s submissions, including an allegation that that he was subject to bullying from about April 2019, and alluding to ‘demeaning body language’ and ‘spying or stalking’ on the part of other staff members, being ‘ignored’ and feeling he’d been ‘belittled’. He also suggested that he was a victim of ‘tall poppy syndrome’, and that there had been a ransomware attack on his employer via his Facebook page (contradicting his previous attribution of blame for the post to his ex-wife).

The submissions of the employer and named staff members presented a different perspective and did not corroborate the worker’s complaints.

The commissioner found that the worker’s allegations were unsubstantiated.

He said the worker had failed to comprehend that procedural fairness requires that allegations are put to him for his response, and that the disciplinary action initiated by management was justified, considering that the racist remarks on the Facebook post had the potential to damage his employer’s reputation and were in breach of its policies.

He found no credible evidence of bullying and that the employer’s actions had been reasonable management action carried out in a reasonable manner. The application for a stop bullying order was dismissed.

The bottom line: To succeed in an application for a stop bullying order, the perception of bullying must be supported on an objective basis by credible evidence.


Read the judgment

Vine v Central Bayside Community Health Services; George Robinson; Sharon Buchanan; Jane Fisicaro [2020] FWC 5910 (5 November 2020)

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