Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

Ms. Bellette was involved in bullying cases within a large Sydney employer. A major restructure had occurred and new managers were brought in. Members experienced a spike in bullying incidents.

In one instance, a manager had been the subject of numerous grievances from different workers, four workers compensation claims had been made by another group of workers and one adverse action claim was lodged in the FWC.

An individual member of the Union then lodged an anti-bullying claim and reached settlement with the employer after one conciliation conference in the FWC. Unfortunately though the workplace bullying escalated, and the Union’s members organised on the ground to support the member.

In this case the worker initiated ill-health termination due to his severe health issues.

In a second case, an anti-bullying application was lodged and one conciliation conference held. An outcome of the conference was the transfer of the respondent manager from the original work area.

The FW Commission then recommended discontinuing the anti-bullying claim and lodging a dispute in accordance with the relevant enterprise agreement to resolve outstanding matters. This course of action was suggested because the transfer of the manager meant there was no future risk to the health and safety of the worker. Outstanding matters, including pending disciplinary action against the member, were settled via the dispute application.

The Union reports that the member felt the anti-bullying process had been helpful in recognising that the bullying had occurred, and finding solutions.

The Health Services Union – Tasmanian Branch had a case in 2014 which involved some unique characteristics including a respondent accused of bullying at the applicant’s workplace and outside of it, and that respondent was not an employee.

In this case, the employer attempted to claim that they could not be held responsible for the applicant’s well-being, despite their obvious obligation to provide a healthy and safe workplace under work health and safety laws.

The case involved a Registered Nurse working in a small nursing home in southern Tasmania. She also lived in the same community as the respondent – the husband of a resident at the nursing home.

The case involved allegations that the respondent had made sexual advances towards the applicant. It was further alleged that the respondent retaliated to the applicant’s rejection of those advances by subjecting her to bullying behaviour, including shouting at her, confronting her in the corridors of the facility and entering staff-only areas to talk to her.

The Union further alleged that management did not want to deal with the staff member’s complaint as they did not want to risk the husband taking his wife out of the facility –and the subsequent loss of fees.

Eventually management changed the shifts of the applicant, without consultation or gaining her consent. It was at this point that the applicant sought assistance from her Union.

The Union’s initial approach to management was also rejected – they claimed the worker’s shifts were changed for her ‘own protection’. The Union assisted the applicant to make a formal complaint of bullying in accordance with the workplace policy, and a dispute was initiated under the enterprise agreement around failure to consult around change of hours.

In the meantime, several staff members had come forward in support of the applicant, but some withdrew their support, The Union alleges that the withdrawal of that support was a consequence of those other staff being subjected to bullying by management.

Eventually management met with the Union, protested that they had not realised how serious the matter was, and restored the original roster of the member. They agreed they would monitor the health and safety of the member and put some safety protocols in place. One such protocol was that the member never be alone whilst she was working, but in such a small facility this protocol proved impractical and the respondent allegedly continued to harass the member.

Adding to the distress of the applicant was the fact that she lived in a very small community, which was the same community that the respondent lived in. It is alleged that he continued to harass her both at the workplace and in the streets of her community.

Eventually the nurse became quite ill from the stress and lodged a workers’ compensation claim. The employer accepted the allegation that the resident’s husband harassed their employee on the street and relied on this to disclaim any liability, and challenged the workers’ compensation claim. This despite the fact that all medical practitioners involved related the injury to the employee’s workplace.

Workers’ compensation was paid and an eventual return to work only lasted a few days.

The Union lodged an anti-bullying application in the FW Commission and the respondents challenged the matter on jurisdictional grounds, but the FW Commission found that the issues involved were so serious as to warrant proceeding.

Witness statements were lodged on behalf of the applicant, by her work colleagues, and the Union drafted a proposed order which was discussed between the parties.

The form of the order was eventually agreed but Union would not agree to withdraw the application as they wanted the formality of orders issued from the FW Commission. The FW Commission informed the parties that in order for consent orders to be issued, the matter must proceed to full hearing; (by this stage only the Union’s opening statements had been heard by the FW Commission).

Ultimately the applicant conceded she had lost all faith in her manager and the matter was settled outside of the auspice of the FW Commission, with the member leaving her employment and being paid a sum of money by the employer.

This case demonstrates just how complex bullying can become and the Union’s insistence that an enforceable order be issued is understandable given the worker’s health, the apparent reluctance of management to face the bullying, and the complication involving the behaviour of a respondent who was not an employee. It also demonstrates where the Fair Work jurisdiction is unique in that an earlier enforceable order to stop-bullying may have had the desired effect and maintained the employment relationship.