In a recent ruling, the Fair Work Commission (FWC) has thrown out a bullying claim from an employment consultant who felt bullied by his manager’s approach to a colleague’s “dad jokes” and accused his manager of sexually harassing him by touching his shoulder.
The National Enterprise Incentive Scheme (NEIS) consultant accused his manager of subjecting him and a close colleague to four months of bullying that came to a head when a client formally complained in November 2018 that they were “smelly old men, racist and sexist.”
Following the complaints and after having spoken to the complainant, the manager arranged a meeting with the consultant to discuss the client’s complaints.
The consultant, who filed an unsuccessful workers compensation claim listing his date of injury as the day the manager informed him and his colleague about the complaint, he accused the manager of starting a meeting to deal with the matter in an aggressive manner towards his co-worker that left them in a state of shock.
He also accused the manager of telling a “blatant lie” during a further meeting about the complaint, in which she claimed to have told his colleague not to tell “dad jokes” soon after she started working for the company, back in July 2018. According to Court documents, the manager had sent an email warning them that, “whilst you may think the jokes are innocent kid’s jokes, the client’s perception is the crucial factor,” and directing them to stop telling ‘dad jokes’ to clients when conducting training.
According to the consultant’s statements, the manager also asked that they moderate their voices “so they are not loud” and to refrain from answering their mobile phones when in the company of clients.
While the manager said she would not record the client’s complaints on their personnel files, the consultant argued that it was unreasonable not to provide written evidence.
Among several other allegations, the consultant accused the manager of inappropriately touching him, coming up behind him while he was seated at his desk and placing both of her hands on his shoulders.
The consultant also accused the manager of engaging in intimidating and unprofessional conduct by speaking “openly and critically” of colleagues, telling “bizarre” personal dating stories, twice requesting a lift home and having “had a go” at his colleague about leaving confidential client files on his desk.
Deputy President Ian Masson, who presided the case, dismissed the colleague’s anti-bullying application, but acknowledged that their sensitivity to criticism meant that certain conduct against one could have a negative effect on both.
While finding that much of the manager’s conduct to be reasonable management action, the deputy president said that, given the pair’s sensitivity to “any criticism of their performance or conduct,” her claim that she previously cautioned his colleague about his jokes was “both unwise and untrue.”
“It should have been foreseeable to [the manager] that such a statement was likely in the circumstances to have a negative impact on both [the colleague] and the [consultant],” he said.
The manager admitted to telling a story about an ill-fated dating experience, complaining about her training and to “venting” about colleagues but said they enjoyed “good humour in the office, friendly banter between all of us and they appeared to be very happy”.
Deputy President Masson said it was inappropriate for the manager to discuss with the consultant her frustration with work colleagues but found the conduct “does not constitute unreasonable behaviour for the purpose of satisfying s 789(1)(a)(ii)”.
Deputy President Ian Masson was satisfied that the shoulder-touching incident did not constitute sexual harassment. He noted that the manager had asked permission to place her hand on his left shoulder to “demonstrate a point she was making, regarding how a seemingly innocuous act could be perceived as sexual harassment.”
To find otherwise “would be to be seriously confect the context and events”, the deputy president said, noting the consultant had at the time “reacted to the point made by [his manager] with a degree of incredulity that such an act could constitute sexual harassment”.
Deputy President Masson concluded that the consultant’s allegations were “largely lacking in merit,” while, “to the extent that I have found some unacceptable behaviour, it is limited and minor in nature and does not establish a basis for finding that the [consultant] has been bullied at work.”
Deputy President Masson decided the manager did not engage in, “repeated unreasonable behaviour towards the [consultant] or group of workers” of which he is a member of and the consultant did not establish that he was “bullied at work,” therefore dismissing the bullying application.
As many as one in three employees say they have been bullied by their boss, and one in four were reduced to tears because of their boss, according to Employsure’s State of Work Report.
The report suggested that bullying was most commonly experienced in so-called “white-collar” industries: education (40.6 per cent), health and professional care (39.5 per cent) and business professionals (37.2 per cent).