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UpdatesAug 15, 2019

Worker loses application for order to stop bullying

A shopping centre cleaner who was excluded from joining a Christmas lunch was not bullied, the Fair Work Commission (FWC) has ruled.

The worker’s employer expressed concerns about her work performance months after the event and had issued her with two letters of allegation.

A shopping centre cleaner who was excluded from joining a Christmas lunch was not bullied, the Fair Work Commission (FWC) has ruled.

The worker’s employer expressed concerns about her work performance months after the event and had issued her with two letters of allegation.

The employer alleged that on a number of occasions the worker had brought her children to work, had arrived late for her shifts and took extended breaks.

It also alleged that on one occasion she was away from her designated work area as she was trying to locate her children.

On the day the employer required the worker to provide a written response to its allegations, she took unpaid personal leave.

She supplied medical certificates to validate her medical condition and hasn’t returned to work since. She remains employed by the company.

Before the worker submitted an application for an order to stop bullying with the FWC, she initially filed a workers’ compensation claim for a psychological injury. This was four days after the deadline the employer gave her to respond to its allegations.

In her claim she submitted that being denied leave on New Year’s Day amounted to bullying and had caused her to suffer from depression.

When her workers’ compensation claim was unsuccessful, she then filed a general protections application.

She alleged the employer had taken adverse action by launching a workplace investigation because she exercised a workplace right by requesting leave and questioning her ability to take leave.

The worker’s general protections application did not progress.

In her stop bullying application she submitted that she was bullied at work and provided a number of alleged incidents to support her claim.

This included the employer preventing her from attending a Christmas lunch and being directed to take a later break because of a heavy workload on that day.

The worker also said she had been treated in a belittling and demeaning manner by her supervisor who had also denied her leave on Australia Day. She alleged that the supervisor when denying her leave said words to the effect of “you are not allowed to take public holidays off” and told her she was required “to work all of them”.

FWC Deputy President Nicholas Lake decided that the worker had not been bullied.

In relation to the Christmas lunch event, he said that “on certain occasions, circumstances and rosters will change in workplaces consistent with workload allocation requirements” and that the incident appeared “isolated and not systemic”.

Regarding the alleged comments the supervisor made about a requirement to work on public holidays, he said it was “a matter of contention between the parties” as to whether the conversation had occurred.

“It was apparent that [the worker] was confused with the employer’s policy/position with respect to leave being taken on public holidays after this conversation with [the supervisor],” Deputy President Lake said.

“To suggest that [the worker] would not have been entitled to take annual leave on public holidays may be a general company preference, but this was poorly and clumsily communicated to [the worker] if this was the case; that is, if [the worker’s] version of the conversation is to be believed.

“[The business manager’s] response to [the worker] … clarifying the policy of the company regarding the taking of leave on public holidays … approving [the worker’s] leave for Australia Day, and subsequently a meeting between [the worker] and [the business manager] … settling any confusion – at least seemed to have allayed [the worker’s] concerns and understanding with respect to this issue.

“I am minded to accept the employer’s submission that following this feedback process, [the worker’s] concerns were addressed and this leave matter was closed. Whilst the argument could be raised that the employer communicated and handled the situation ineptly, it does not suggest the conduct exposed amounted to bullying with respect to the [Fair Work Act].”

Deputy President Lake also noted the worker had complained to the business manager about the treatment she had received from her supervisor before the FWC hearing, but decided not to follow up on an offer to lodge a formal complaint or take further action.

The worker’s application for an order to stop bullying was dismissed.

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