Repetition, repetition, repetition – employee fails to obtain a stop bullying order because the unreasonable acts were not repeated

An employee has failed to obtain anti-bullying orders, despite proving that the company had engaged in unreasonable behaviour on 4 occasions and that as a result of those incidents there was an ongoing risk to the employee’s health and safety.

In Hammon v Metricon Homes Pty Ltd [2015] FWC 5565, Mr Hammon presented Commissioner Roe with a shopping list of complaints that were described by the Commissioner as “voluminous and detailed”, “not always in chronological order” and with “specific allegations … buried in more generalised statements lacking particular detail or time frame”.

Despite the flaws in Mr Hammon’s application, the Commission did find that the company had acted unreasonably on 4 occasions, including:

  1. Mr Hammon was called a “lackey” by a senior manager
  2. Mr Hammon’s head featured on a board surrounded by other pictures and was not taken down by Mr Hammon’s manager promptly
  3. a senior manager threatened to withhold Mr Hammon’s pay to teach him a lesson about paying contractors promptly and
  4. a senior manager asked Mr Hammon for an arm wrestle (which Mr Hammon refused) at an end of year party. When the matter was reported and substantiated by another manager, instead of conducting an independent investigation and disciplinary process, the Company asked Mr Hammon if he wanted to make a formal complaint.

As a result of the company’s unreasonable actions, Mr Hammon developed an adjustment disorder and had not returned to work. The Commission was convinced that there was an ongoing risk of harm to Mr Hammon’s health and safety.

However, the critical flaw in Mr Hammon’s case despite having proved that the company’s unreasonable acts harmed Mr Hammon’s health and safety, was his inability to prove that one of Mr Hammon’s managers (the alleged bully) had repeatedly engaged in unreasonable acts. The Commissioner determined “I am not, on balance, satisfied that the test of ‘repeated unreasonable behaviour while at work’ is met. … I therefore cannot make orders in the matter.”

The real weakness in Mr Hammon’s case may be that he alleged that one individual was responsible for all the alleged unreasonable acts. Instead the Commissioner determined that the managers were not acting in concert to engage in unreasonable acts, and that the alleged bully had only committed one unreasonable act.

There were a number of other issues between Mr Hammon and the company that may have exacerbated the breakdown in the relationship. Mr Hammon consistently claimed that his pay had not risen in line with his expectation and that the alleged bully was responsible for his lack of pay increase. Additionally, Mr Hammon had received a first and final warning for failing to properly complete health and safety reports in relation to a number of the Company’s sites. It would appear that (like other similar cases) the Fair Work Act’s anti-bullying regime is being used by employees to vent grievances that the anti-bullying regime is not designed to resolve.

Take-home lessons for employers:

  • The decision confirms the strict view taken by the Commission of the form of conduct required to contravene the anti-bullying regime in the Fair Work Act 2009.
  • Where appropriate, the Commission may view a series of unreasonable acts in isolation rather than as forming a course of repeated conduct.
  • The anti-bullying regime is not a forum for venting broader employee grievances and in such cases the Commission will not step in to assist.

The Commission’s decision in Hammon v Metricon Homes Pty Ltd [2015] FWC 5565 can be assessed here.

Photo credit – pixabay.com

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