Employer argues conduct is 'standard performance management practice'
The Fair Work Commission (FWC) recently dealt with an anti-bullying application filed by a worker against V/Line Corporation, a public transport company in Australia.
The case centred on allegations of workplace bullying by the worker's supervisors over a two-year period. The worker claimed he was subjected to unreasonable treatment, including being forced to leave the workplace, undergo medical tests, and take annual leave.
He also alleged that he was isolated, falsely accused, and pressured to admit guilt for things he hadn't done. These claims paint a picture of a challenging work environment, raising questions about the line between performance management and bullying.
The worker said that between mid-2022 and August 2024, he had experienced bullying from his supervisor and another manager. According to his application, the alleged bullying behaviours were wide-ranging and persistent.
The worker said he was required to provide medical certificates for sick leave taken on Fridays, suggesting he felt his absences were unfairly scrutinised.
He also claimed he was asked to sign off on safety details for large infrastructure projects despite lacking the necessary qualifications, which raised concerns about potential liability and workplace safety practices.
Expressing worry about potential dismissal for minor mistakes, the worker sought FWC intervention. He requested an order to prevent the employer from creating what he termed a "fake paper trail" that could be used as grounds for dismissal. Additionally, he asked for an order requiring the employer to warn his supervisor about their behaviour.
V/Line, along with the supervisor and manager named in the complaint, firmly denied any unreasonable conduct. They argued that their actions were part of reasonable management practices aimed at addressing legitimate concerns about the worker's performance and fitness for duty.
To support their position, the employer pointed to four specific incidents:
1. Apparent misuse of a work iPad in July 2022
2. Reports of the worker lying on grass while others worked in August 2023
3. Failure to notify the employer of a week-long absence in December 2023
4. Excessive data usage on a colleague's iPad in June 2024
V/Line provided explanations for some of the worker's allegations. They said the worker was only required to leave the workplace when his medical clearance expired in May 2023. The employer argued that medical clearances were necessary due to the safety-critical nature of the worker's role.
The FWC noted, "[The employer] said that its concerns about [the worker's] performance were genuinely held." V/Line denied trying to make the worker write statements of guilt, saying he was simply offered the chance to provide written statements if he wished.
They also said medical certificates were only required when reasonable, such as for sick leave taken before pre-approved leave.
The employer denied isolating the worker, stating that private discussions about performance issues were appropriate. They argued that their actions were consistent with standard performance management practices.
After considering the evidence presented by both parties, the FWC dismissed the anti-bullying application. The Commission provided several reasons for this decision:
First, the FWC was not convinced that the employer or supervisors had acted unreasonably. The Commission found, "I was not persuaded that [the supervisor], [the manager] or [the employer] had behaved unreasonably. I found that the [employer] held genuine concerns about [the worker's] performance and capacity, and that it was reasonable for [the employer] to investigate them."
Second, the FWC did not find evidence to support claims of forced confessions or inappropriate isolation. The Commission stated, "[The worker] was not 'isolated'. He was spoken to in private about performance matters, which is appropriate."
Third, the FWC found no proof for some of the worker's claims. The Commission noted, "I found that [the worker] did not in fact sign off on safety details for large projects without qualifications; no details of these improbable claims were provided, and I accept [the employer's] statement that it has checked its assets database and that no work orders were signed off by [the worker]."
Fourth, the FWC highlighted a crucial element missing from the worker's case: "No link was established between the conduct that [the worker] claimed to be unreasonable and any risk to his health and safety. In the absence of such a link, there is no power to make an anti-bullying order."
For the FWC to issue an order, it said there must be a clear connection between the alleged unreasonable behaviour and a risk to the worker's health and safety. Without this link, the Commission said it lacks the authority to intervene.
Finally, the Commission found no risk of future bullying, stating, "I found that there was no risk that [the worker] would be bullied at work in the future. There was no basis to conclude that he will be subject to unreasonable conduct that would create a risk to his health and safety at work."
Given these findings, the FWC concluded, "As the conditions in s 789FF were not met, the Commission had no power to make an anti-bullying order. The application was therefore dismissed."
