Hostile work environment: Worker says employer failed to intervene against bullies

The Fair Work Commission (FWC) recently dealt with a case involving allegations of workplace bullying and the determination of future risk in such situations.

The worker claimed he faced a "disturbing pattern of bullying tactics" that created a hostile working environment, forcing him to stay away from work. He argued that his employer failed to adequately address his concerns and even engaged in "retaliatory actions" when he tried to return to work.

The case raised questions about workplace safety, the responsibilities of employers, and the complexities of addressing bullying allegations in a casual employment setting.

Bullying allegations and worker's concerns

The worker, employed at an IELTS facility, started working on 1 July 2023. On 18 March 2024, he filed an application with the FWC for an order to stop bullying, naming his employer and six co-workers as respondents.

The application detailed incidents dating back to November 2023, which the worker said created a hostile working environment. The worker felt he had to stay away from work to avoid the behaviour of the named persons, which he said the employer did not address properly.

In his first report to the employer, the worker mentioned a "disturbing pattern of bullying tactics" and asked for a transfer to another location "to ensure a healthier work atmosphere." The worker also asked to be given shifts on days when one of the named co-workers was not working.

When the issues weren't resolved, the worker went back to work on 17 December 2023 but said he faced "retaliatory actions." The worker criticised the employer's attempts to resolve his concerns between mid-December 2023 and April 2024, calling them "toxic mobbing procedures.

Medical capacity and return to work

A key part of the case was about the worker's ability to return to work. On 3 March 2024, the worker gave the employer a worker's injury claim form and a certificate of capacity. On 15 March 2024, he provided an updated certificate that said the worker should "avoid direct contact" with his manager, "avoid interaction with administration staff," and "avoid reception duties."

The employer wrote to the worker on 27 March 2024, noting that the normal duties of his role included contact with the manager, interacting with administrative staff, and reception duties.

The employer offered the worker casual shifts in the "computer test room" which would involve contact with a different manager, limited interaction with administrative staff, and limited reception duties.

The worker didn't accept this offer. He said the employer should give him casual shifts following his work pattern before he made his complaint. The worker said the employer's offer was "a deliberate attempt" to avoid accommodating his request while shifting blame onto him "for allegedly declining shifts."

The employer asked the worker several times to provide more information from his doctor about his current ability to work and what changes might be needed at the Melbourne test centre.

The employer said these requests were made on 24 April, 21 May, 22 May, and 23 May 2024. The worker didn't provide any updated medical information. On 22 May 2024, the worker said he did "not intend to seek further medical assistance" and that the employer "may proceed" with what it had.

Employer's response and transfer offer

The employer offered to help the worker transfer to its Perth office. The offer said:

"[The employer] is willing to facilitate [the worker's] transfer to Perth IELTS office ([Address]) as a casual invigilator. However, [the employer] is not willing to guarantee [the worker] shifts per week at office, nor is [the employer] willing to cover any of [the worker's] relocation costs. [The employer] does not guarantee casual invigilators a certain number of shifts per week or pay them relocation costs. Further, [the employer] does not agree to pay [the worker] any compensation."

The worker didn't accept this offer. He said it was a "pre-emptive attempt" to "capitalise on this ongoing vicious mobbing tactic." The worker argued that the offer didn't guarantee casual shifts or cover relocation costs, making it impractical to accept.

FWC's consideration of future risk

The FWC had to decide if there was a risk that the worker would continue to be bullied at work, as required by section 789FF(1)(b)(ii) of the Fair Work Act 2009. The FWC looked at several factors to make this decision.

The FWC noted that the worker hadn't worked a casual shift for the employer in over six months and was still unable to work. The worker said he didn't plan to get more medical help. Because of this, the FWC found there was no sign of when he might return to work at the Melbourne test centre.

The FWC also looked at what the employer planned to do if the worker came back to work. Two of the named persons promised not to communicate directly with the worker, and the employer said it wouldn't offer shifts that would make the worker work with any of the named persons.

The FWC said:

"Even if there was a prospect of [the worker] returning to work (a matter about which I am not presently satisfied), I consider that the measures proposed to be put in place by [the employer] for any such return to work would remove any risk that [the worker] will 'continue to be bullied' by the Persons Named."

About the transfer offer, the FWC noted:

"[The employer] has continued to express its willingness to facilitate [the worker's] transfer to another [employer] test centre in Australia, as per his request. However, [the worker] has firmly, and repeatedly, declined the terms attached to [the employer's] offer. Regardless, should such a transfer occur, I accept [the employer's] submission that it will not facilitate any later transfer request by a Person Named to the test centre at which [the worker] is engaged."

No risk of continued bullying

In the end, the FWC decided there wasn't a risk the worker would continue to be bullied at work by the named persons. The FWC said:

"For the reasons given, I am not satisfied that there is a risk that [the worker] will 'continue to be bullied at work' by the Persons Named within the meaning of s789FF(1)(b)(ii) of the Act. Therefore, even if I were to find that [the worker] has been bullied at work by the Persons Named (which they deny), there is no jurisdiction to make an order to stop bullying."

This decision shows the difficulties in dealing with workplace bullying claims, especially when casual employment and medical issues are involved. It shows how important it is for employers and workers to communicate clearly and work together to solve workplace problems.