The Fair Work Commission (the FWC), in a recent decision declining to make stop-bullying orders, has provided some guidance on de-escalating conflict in the workplace which may seem quite obvious on its face, but is worth a reminder to employers and managers.
In the decision of Application by Wong [2024] FWC 2856, an employee had sought stop-bullying orders against Skycity Adelaide Pty Ltd (the Employer), his former manager and a HR business partner.
The employee was employed as a Chef de Partie in the Employer’s Conference and Events Department; however, had been temporarily moved to the Employer’s Kitchen Department. As a result of this move, the employee was required to report to a different manager. It was generally accepted that the employee was not particularly happy about the move.
Approximately three weeks into the move, the employee injured his back whilst on a walk prior to the commencement of his shift. In accordance with the Employer’s established procedures, he notified the Employer through its automated messaging system. Unfortunately, the system had not been updated to reflect the change in the employee’s reporting line. As a result, the employee’s former manager was notified of his absence and not his new manager.
The former manager subsequently texted the employee, asking that the employee notify his new manager in the future when he was sick. This text prompted a series of text messages from the employee to the effect that he would not do so as he did not wish to communicate with the new manager and expressing his frustration that he felt like “a ball being kicked around”.
A few days later, the employee was advised by HR that he would be required to attend a meeting to discuss the Employer’s concerns that he had not followed a reasonable management instruction and possible disciplinary action.
The employee attended the meeting and then took personal leave (for stress) for two weeks. During this period, he filed the application seeking stop bullying orders. The employee was not notified of the outcome of the disciplinary process until he received the Employer’s response to the application (some three weeks later). The outcome was that no disciplinary action was to be taken.
In the application, the employee claimed that he had been subjected to the following bullying behaviour:
In relation to the first allegation, the FWC considered there may be some merit in the employee’s argument that the requirement was unreasonable. This was because the employee had already complied with the Employer’s processes for notification of absences and the correct identification of the manager in the system was the Employer’s responsibility. However, the behaviour was not repeated nor did it cause a risk to the employee’s health and safety.
In relation to the second allegation, the FWC found that it was not unreasonable for the Employer to decide that a formal meeting was necessary in circumstances where, on one view, the employee had refused a lawful and reasonable instruction. It had made it clear to the employee that he could provide an explanation and that disciplinary action was not an inevitable outcome.
In relation to the third allegation, the FWC considered the Employer’s delay to be not unreasonable in circumstances where the employee was on personal leave and given the reason for the conflict was that he did not wish to communicate with a manager while on personal leave.
Ultimately, the FWC found that none of these amounted to bullying behaviour and declined to make stop bullying orders.
Despite the above, the FWC did express concerns about the conduct of both the Employer and the employee in this particular matter. Relevantly, it queried the necessity of the Employer’s conduct given that there were other options available to it that could have de-escalated the situation and obviated the need for court intervention.
The FWC stated, for instance, that it may have been more reasonable for the Employer to deal with the employee’s refusal to notify his new manager in a less formal manner, such as by an “off the record” meeting that was mediated by HR, particularly given the employee had already complied with existing policy and it was not the employee’s responsibility that the system had notified the wrong manager.
The FWC’s observations in this decision highlight one of the options available to employers in attempting to de-escalate conflict in the workplace which can sometimes be forgotten – engaging in informal discussion with the employee to understand the source of the tension.
Obviously, this is an option that will not suit all circumstances – in some cases, disciplinary action will be necessary and will not automatically constitute bullying (as can be seen in this case), but it should not always be disregarded as a potential solution to resolving conflict in the workplace prior to more formal action being taken.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
