Bullying Accusation Falls Short

The Fair Work Commission (“FWC”) has rejected an allegation of bullying made by an employee of a charitable organisation (“the Organisation”). Mr Garcia (“the Employee”) claimed that he had been bullied under s 759FC of the Fair Work Act 2009 (Cth) (“FWA”), accusing the organisation of giving his usual shifts to another employee because he was struggling with depression.

Background

The employee received performance counselling on 26 November 2020 from a manager (“Manager A”) after being diagnosed with depression (“the Performance Meeting”). He was informed that his hours would be reduced because he slept on the job, was reluctant to work and was using his “depression as an excuse”. On 9 December 2020, the employee emailed a human resources manager (“Manager B”) of his concerns relating to the outcome of Performance Meeting. Following the Employee’s complaint, the Organisation decided that Manager A would undergo additional training for managing people with mental illness.

On 15 December 2020, Manager B received a call from the Employee who suggested that the way he was feeling “made him understand why people bring a gun to work”. He was challenged on this, but assured Manager B that he was not threatening anyone and “would not act on it”. On 23 December 2020, the Employee had a meeting with a Chaplain facilitated by the Organisation. He claimed that he felt betrayed by the Organisation and that he was being bullied so that he would leave. The Employee subsequently requested a 24/7 support person to be made available to him.

One week later, a third manager (“Manager C”) informed the Employee that he needed to take time off work for threatening violence after making the comment, “they are lucky I don’t give people a knuckle sandwich”. The Employee was served a warning letter on 8 February 2021 for the inappropriate conduct, and he was later informed that he would be unable to return to the Organisation branch in Youngtown due to a change in volunteering requirements. The Employee ignored the exclusion order and attempted to confront Manager A. He was escorted from the premises by police.

The Employee was terminated from his casual position, but this was later reversed after he filed an unfair dismissal application before the Fair Work Commission on 30 March 2021. Relations between the Employee and the Organisation deteriorated over the following six months. The Employee threatened to kill himself, calling his colleagues “evil people” and claimed that the Organisation had treated him “like sh*t”. Manager C contacted the police and on 30 July 2021, police attended the Employee’s house and talked to him about his threatening call with Manager B in which he alluded to bringing a firearm to work.

In response to this, the Employee lodged an application for an order to stop bullying.

The Outcome

The FWC determined that the Organisation had not mistreated or bullied the Employee. It was determined that while the Employee had been honest with his evidence, but evasive on matters where he thought adverse findings would be made in his interests. The Commissioner found that the Organisation had legitimate concerns about the Employee working again for the safety of his colleagues and branded his lack of insight as “concerning”.

In his closing remarks, Commissioner Lee stated that; “in fact, the evidence shows an organisation that, particularly through the agency of [the HR manager], has turned itself inside out to accommodate the needs of [the worker]”.

The Takeaway

It is important that managers are trained to be supportive and accommodating of employees with mental health disorders and other disabilities. Support networks might come in the form of flexible working arrangements, consultations with a mental health professional and/or time off work. However, violent or otherwise threatening behaviour should never be tolerated in the workplace.

The Organisation afforded the Employee with many opportunities to change his behaviour prior to terminating his employment. The FWC commended the Organisation on their patience and how accommodating they were to the Employee, particularly given their genuine fear for the safety of their employees. This case demonstrates the need for procedural fairness in disciplinary procedures, but also ensuring that the safety of employees is prioritised.

If you have any questions about managing employees with mental health disorders, please do not hesitate to contact Nick Stevens, Luke Maroney, Daphne Klianis or Josh Hoggett.