IN a recent Fair Work Commission (FWC) decision, employees have been warned that managerial directions in allocating ‘reasonable tasks’ not specifically listed in a job description does not constitute bullying.
An employee of mining company CITIC Pacific had his application for an order to stop bullying dismissed after failing to argue that he had been bullied by managers on two separate occasions.
In the first complaint, the employee argued that his performance review had been altered without his knowledge, leading to the award of a discretionary bonus payment significantly lower than his expectations.
The allegation that his performance review had been altered was made after the employee accessed his manager’s emails without permission.
Rejecting the complaint, Commissioner Cloghan said that ‘payment of a discretionary bonus is a matter of the employer’s judgement’.
“In my view, unless it can be demonstrated that a discretionary bonus payment has been applied in a punitive manner as part of a course of conduct which falls within the meaning workplace bullying, the commission should be cautious of considering, of itself, a discretionary bonus as workplace bullying,” he stated.
“The belief by employees that they should have received a greater amount does not, of itself, in my view, constitute workplace bullying.”
Cmn Cloghan also reprimanded the employee’s unauthorised email access, warning that employees should not remit themselves from duties on the belief they are being bullied.
“If an employee believes that they are being bullied at work, this does not mean that the normal duties and responsibilities of employees are no longer applicable,” Cmn Cloghan said.
“Because an employee believes that they are being bullied at work does not give him or her immunity from observing all the policies and practices expected in the workplace and in the employment relationship.”
In the second complaint, the employee was allocated a task that he considered to be beyond his skills capacity and outside of expectations provided in his job description, constituting what he argued to be bullying.
Cmn Cloghan rejected the employee’s position, noting the employment contract permitted flexibility provided the majority of duties and responsibilities remained consistent with his role.
“It is not sustainable for employees to say that a task is beyond their skill level and if the employer does not agree, allege that it is workplace bullying,” Cmn Cloghan said.
“Such a situation would be tantamount to the Commission endorsing a one-sided, self-determining premise as bullying in the workplace.”
Citing grounds that each of the incidents constituted appropriate managerial discretionary decision making, Cmn Cloghan dismissed the application for an order to stop bullying.
Read the full decision here.
Implications for employers
As decisions are handed down in line with the Fair Work Commission’s relatively new jurisdiction over workplace bullying, the definition of ‘bullying’ continues to be refined.
This particular case is especially important as it clarifies that both discretionary bonus payments and delegation of reasonable tasks are matters of managerial discretion, unlikely to constitute workplace bullying.
The commissioner’s statements regarding an employee’s duty to observe policies and procedures, regardless of whether they feel they are being bullied, is significant, as some employers may find such incidents warrant disciplinary procedures.
To manage potential issues in this area and limit the risk of disputation, employers are encouraged to communicate company policies around behavioural expectations, procedures to manage workplace bullying and disciplinary actions for contravention.
AMMA’s workplace relations consultants can provide both information and advice on how to manage instances of workplace bullying and any related issues. To speak to one of our workplace relations experts, contact your local AMMA office.