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​​​Some things can’t be ignored

Legal case: bullying and harassment

Published: 18 November 2016​

A recent case in the Fair Work Commission illustrates the need to investigate all suggestions of bullying and discrimination, even if there isn’t a formal complaint.

Facts

Three workers at a mining company were stood down after they took part in a “prank” where they used their vehicles to box a co-worker in on the highway. This prevented him from taking his home exit and led to increased traffic congestion, which came to the attention of management.

The victim told his supervisor what happened but didn’t want to make a formal complaint as he didn’t want to be the black sheep on the team. He said he had been told to ‘stop working how you do, you’re breaking down our conditions’, which probably referred to the amount of work he got done during a shift. This may have caused some animosity towards him. 

The company decided to investigate anyway. The victim said he was happy to have the matter taken further, but he didn’t want to be the complainant. The culprits denied that the incident was planned, and that they had colluded afterwards to get their stories straight. 

The investigation revealed that two of culprits had thrown rags soaked in petroleum jelly at the victim, and the three of them had had a conversation in the car park for ten minutes before following him home. One of them admitted that it was a ‘joke’.

Two of them were dismissed and one, Mr Kedwell, took action for unfair dismissal. He argued that the victim had not made a complaint, so the investigation had no foundation under the company’s policies. 

Decision

The Fair Work Commission found that the victim’s actions in telling his supervisor about the incident constituted a complaint, even if he didn’t think it was one. The company was bound to identify the behaviour and act on it quickly and firmly. 

The commissioner rejected the argument that the conduct was out-of-hours, because it had a sufficient connection to the employment relationship. He found that it was in breach of the company’s anti-discrimination, harassment and bullying policy, and of work health and safety requirements.

The commissioner rejected Mr Kedwell’s argument that dismissal was disproportionate to the offence, and inconsistent given that a fourth co-worker was not disciplined. The commissioner said the conduct may have seemed like a joke to the perpetrators, but the victim did not see it that way, and it amounted to a valid reason for dismissal.  Also, the fourth worker did not harass or box anyone in. 

The Fair Work Commission found that the company had given Mr Kedwell every chance to respond before making its decision, and he was afforded procedural fairness throughout. Mr Kedwell’s two previous warnings and bullying of another colleague were also relevant. The unfair dismissal claim was dismissed.

Take home points

You must deal with behaviour that is a risk to health or safety, a breach of policies dealing with discrimination, harassment or bullying, or potentially damaging to your  organisation, whether or not the victim complains.     

Unwelcome pranks and jokes based on grounds such as age, race, sex or sexuality may be covered by the Anti-Discrimination Act 1977 (NSW). Such behaviour can be unlawful harassment if the victim is offended, humiliated or intimidated to the extent that the work environment becomes hostile or demeaning.

Such behaviour may also be bullying, which is unlawful under work health and safety laws and the Fair Work Act. The reason for the behaviour is irrelevant, but it must be unreasonable and either repeated or part of an ongoing situation and serious enough to be a health or safety risk. 

Back to November 2016 - Equal Times Newsletter​​​​​

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