Bullying: James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2015] FWC 1131

The Fair Work Commission has dismissed an employer’s jurisdictional objection to an application for a stop bullying order after finding that the employer’s disciplinary process was not ‘reasonable management action’.

Ms Carroll, the Human Resources Manager of Capital Radiology Pty Ltd sent a letter to Mr Willis in September 2014 titled “Disciplinary Process” which outlined a number of allegations against Mr Willis, including issues regarding efficiency, following direction, attitude and rudeness. The letter stated that the implementation of the disciplinary process could lead to the termination of Mr Willis’ employment.

Mr Willis made an application to the Fair Work Commission (FWC) for an anti-bullying order alleging that the disciplinary process was unwarranted and that he had been bullied at work and was continuing to be bullied in his employment with Capital Radiology.

Capital Radiology made a jurisdictional objection claiming that the FWC could not deal with Mr Willis’ application on the grounds that he was not being bullied at work and that the actions of the HR Manager amounted to being reasonable management action carried out in a reasonable manner.

The FWC was therefore required, prior to determining whether Mr Willis had actually been bullied at work, to determine whether Capital Radiology’s conduct amounted to reasonable management action. If the conduct was reasonable management action, the FWC would dismiss Mr Willis’ application. 

Decision

The FWC found that:

“a requirement for relevant management action to be reasonable is that there must be some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action, and that the management action is a reasonable and proportionate response to the attributes of the employee to which it is directed.”

It was found that it would have been reasonable for Capital Radiology to place Mr Willis on a routine performance management plan. However, implementing the disciplinary process, which threatened Mr Willis’ employment, did not amount to reasonable management action as it was excessive and unwarranted as Mr Willis had been responding positively to the issues concerning his performance.

The FWC dismissed Capital Radiology’s jurisdictional objection. It made no finding as to whether Mr Willis was actually bullied at work. This will be determined at a Hearing at a future date.

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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