The FWC confirmed that its anti-bullying jurisdiction is designed to protect employees from bullying behaviour, rather than to protect their feelings. This does not mean an employer is obligation-free.
In a stop bullying application, the employee claimed she was experiencing bullying behaviour by three of her co-workers who she claims teased her, made practical jokes, and ignored her in the workplace. She claimed that the behaviour was confronting, aggressive, and that it affected her mental state and made her feel ‘uncomfortable’.
The FWC examined each assertion made by the employee and found that the behaviour complained of did not amount to repeated unreasonable behaviour that would constitute workplace bullying. The decision reinforces the important distinction between reasonable workplace conduct and an employee’s self-belief that they had been bullied or feelings of discomfort.
The employee’s perspective must always be balanced against the conduct of the accused individuals, and the employee’s self-belief will not trump all other factors.
Lessons for Employers
This decision confirms the well-known principle that the ‘reasonableness’ or ‘unreasonableness’ of workplace behaviour is determined based on an objective assessment. However, when faced with a complaint of potential bullying, employers must always consider any apparent risks to the employee’s health and safety.
Even if the bullying is not substantiated, if there is a genuine and legitimate risk to safety in the circumstances, interim measures must still be considered to eliminate or minimise those risks.
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