By Michael Selinger

A recent decision of the Fair Work Commission (FWC) has examined the blurred lines between professional and personal relationships within the workplace. The Commission rejected an employee’s claim that her managing director bullied her through comments about her appearance, personal life, and sick leave.

In Ms Caroline McCutcheon v Fine Wine Wholesalers Pty Ltd; Mrs Veronica Lawrence(2018) (McCutcheon), the Commission observed that the relationship and level of familiarity between the two female colleagues gave context to the managing director’s comments that included that the employee’s boyfriend, a co-worker, might “break her heart“, and that she preferred the employee’s “natural look” when it came to her use of make-up.

What was the nature of the colleagues’ relationship?

In McCutcheon, the managing director, Ms Lawrence, and the area manager, Ms McCutcheon, formed a relationship that exceeded that usually found in an employment relationship.

The Commission established that there was a blurring of the line between employee and acquaintance/friend, evidenced when Ms McCutcheon visited Ms Lawrence during a time when Ms Lawrence was bereft and stayed for a period to socialise, drink wine, and notably when Ms Lawrence passed comment about Ms McCutcheon’s boyfriend.

Ms McCutcheon alleged that Ms Lawrence had engaged in the following bullying behaviours:

• had spread untrue malicious rumours in front of the sales team regarding her boyfriend;
• had made humiliating remarks to Ms McCutcheon about her appearance when she was unwell due to illness, when her appearance was affected due to an allergic reaction, and when she wore “too much make-up” and looked like “Coco the Clown”;
• embarrassed Ms McCutcheon by informing her that she looked good for her age, had a better figure and legs than herself in circumstances where Ms McCutcheon is much younger than Ms Lawrence;
• would advise female staff to wear revealing items of clothing, short skirts and low-cut tops to achieve sales;
• made remarks that she couldn’t afford Ms McCutcheon’s wages if she did not hit her budget;
• had set unreasonable work expectations, which included a daily run from seven calls to 12 calls a day and increasing administration requests in regards to new business accounts;
• questioned the taking of sick leave;
• illegally requested Ms Lawrence’s medical records and illegally discussed the health of Ms McCutcheon with the medical centre’s reception;
• required Ms McCutcheon to work on a public holiday in or about April 2017; and
• caused the workers’ compensation insurer not to pay Ms McCutcheon’s compensation claim.

Ms Lawrence and Fine Wines disputed the claims, asserting that many of the alleged behaviours did not occur or, if they did, they were not unreasonable or were reasonable management action dealing with Ms McCutcheon’s poor performance.

To the extent that the Commission found the conduct occurred, it found that the level of familiarity between the managing director of Fine Wine Wholesalers Pty Ltd and the employee was such that the comments could not be deemed to be unreasonable behaviour constituting bullying within the meaning of the Fair Work Act 2009 (Cth) (FW Act).

In many cases where performance was an issue, the Commission relied on the legal authorities that held that ‘some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work’.

Nevertheless, despite finding that the conduct was not bullying, the Commission stressed that being well acquainted with someone in the workplace did not excuse inappropriate or unsafe conduct.

In what circumstances will a stop-bullying order be granted?

Observing that section 789FD(1)(a) of the FW Act requires that an employee is subjected to repeated unreasonable behaviour to establish workplace bullying, the Commission in McCutcheon found that the managing director behaved unreasonably towards the worker only on one occasion. In this instance, the managing director had made belittling comments about the employee neglecting to make proper arrangements for a client function in front of guests at the event. However, as this was a single occurrence rather than repeated unreasonable behaviour contemplated by the anti-bullying provisions of the FW Act, a stop-bullying order could not be granted.

The Commission was satisfied that the colleagues had fostered a level of familiarity between the two of them that may have surpassed that usually found in an employment relationship. It was emphasised that such a relationship does not excuse inappropriate comments made, but does provide context for a comment such as a preference for a “natural look” being considered by the managing director as a compliment.

What should employers do when bullying complaints arise?

In light of recent bullying-related cases, employers should ensure that appropriate steps are taken once employers become aware of bullying behaviour in the workplace.

In Re Watts (2018) (Watts), which was delivered in March of this year, the Commission found that a human resources adviser and a manager consciously and unreasonably decided not to investigate an employee’s bullying complaints.

The human resources adviser and manager failed to follow the company bullying and harassment policy, and had imposed their own subjective requirements on the information the employee needed to provide to them before they would investigate the allegations.

In Watts, the Commission found there to be “no reasonable explanation” for the employer’s failure to act on the bullying complaints made by the employee, and was left in “no doubt” of the need for the Commission to intervene and make an order to prevent further bullying in the workplace.

Lessons for employers

Employers should take a proactive approach to matters of bullying and harassment in the workplace. Appropriate and current bullying and harassment policies, procedures and training should be adopted and implemented by employers. By adopting preventative measures, employers can determine what appropriate action should be taken in the given circumstances. Employers should look to:

• have policies and procedures in place for employees to raise bullying complaints;
• ensure employees are aware that the blurring of professional and personal boundaries in the workplace does not provide a safeguard against inappropriate comments that may be made;
• properly investigate bullying complaints when they arise;
• take active steps to minimise the risk of further bullying through training, disciplinary action, counselling and assistance to those who may be affected by bullying; and
• once an employer is on notice of concerns of bullying, it is important that this is not ignored.