When is a Bully a Bully?

Workplace Relations Update For Executives on the Go!

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In this update we cover:

  • When is a Bully a Bully?
  • The Importance of Following Principles of Fairness!
  • Payroll Overpayment! Can You Deduct it From the Employee?

Q: When is a Bully a Bully? A: Not When an Employer Fails to Follow Due Process

Bullying is invidious. But employees who are abrasive and even cause distress to their colleagues are not necessarily workplace bullies, as shown by a recent unfair dismissal case in the Fair Work Commission (FWC).

The FWC found last month that a woman had been unfairly dismissed for bullying and harassment despite having “behaved in a way that caused staff and customers to complain” and speaking to her subordinates and colleagues “inappropriately”.

The matter has highlighted how employers must ensure they have a clear set of policies and procedures in place that not only define workplace bullying but also specify how to deal with it.

“In short, [her] conduct in the workplace left much to be desired and I have no doubt that what she described as an abrasive personality and a direct and forthright approach, caused disruption and distress to colleagues and employees she managed,’’ said FWC deputy commissioner Ingrid Asbury.

But that did not justify her employer an airport ground services company dismissing the woman for her alleged breaches of the firm’s policy in relation to bullying.

The FWC found the company fell short in how it followed up and dealt with the alleged bullying. In particular:

  • at a meeting between the employer and employee in response to the original bullying accusations, the company brought up an entirely unrelated matter without mentioning the allegations in question.
  • The company also failed to outline the specific allegations to the employee in emails it sent the employee following the meeting.

“If these incidents were so significant, they would have been clearly articulated in the email informing [the woman] that she was being stood down, and/or specifically dealt with at the meeting,’’ the FWC found.

“The failure to discuss these incidents … indicates that they were not considered to be bullying in breach of [the company’s] policy.”

This is reminder that any workplace bullying complaints must be well-documented and properly discussed with the staff members in question before any disciplinary action is taken. In legalese not only must employers have a substantive reason to dismiss an employee (“substantive fairness) they must also follow the correct procedures (“procedural fairness”).

A Bit More on Fairness – Just to Make the Point!

Another case in the FWC has also stressed the need for employers to properly investigate, document and follow-up allegations of workplace misconduct before taking disciplinary action.

The Commission has found a Melbourne label printing company had unfairly dismissed two employers for fighting due to the decision being based on its failure to fall the principles of “procedural fairness”.

The FWC found whilst there was a valid reason for  dismissing  the two men who engaged in a physical fight with another employee (“substantive fairness”) the company did not have a “sound, defensible or well founded” reason for the decision, which was made on the same day as the incident. In other words they failed to follow “procedural fairness”.

The company dismissed both employees on the day of the altercation based only on one verbal report. The company also failed to give the men an opportunity to sufficiently respond to the reason for their dismissal.

“At the time it made its decision, the company had not fully investigated the circumstances of the events. It had not ascertained who might have witnessed any of the events, or as neutrally as possible, sought out alternative explanations for the actions or their causes,”found FWC Commissioner Nicholas Wilson.

Lesson 1 from the two FWC decisions is that employers must understand and strictly apply the key workplace relations principles of “substantive” and “procedural” fairness.

Lesson 2 is that all employers need to have well-articulated policies and procedures in place regarding misconduct.

Payroll Overpayment! Can You Deduct it From the Employee?

Payroll mistakes where employers overpay employees are more common that you think.  The Fair Work Ombudsman has recently provided an update regarding the deductions an employer can make from an employee’s pay.

Employers can deduct money from an employee’s wages to recover an overpayment if it’s allowed by an enterprise agreement, modern award, law or court order.

Employers may also be able to deduct money from an employee’s wages to recover an overpayment if the employee:

  • has a choice about how the money is repaid
  • agrees to the deduction in writing
  • agrees on the amount and frequency of each deduction (which must be reasonable).

If an employer and employee can’t agree about repaying the overpayment, an employer should get legal advice.

How can CompliSpace help?

CompliSpace’s comprehensive range of cost effective human resources policies, procedures, training and testing modules, ensure that managers and staff know what is expected of them and have key tools and information at their fingertips at all times. This enables a business to meet its workplace relations obligations while building a positive corporate culture, capturing knowledge and saving time. For more information, contact us on the details below:

P: +61 (2) 9299 6105 (Sydney) / +61 (8) 9288 1826 (Perth)

E:  contactus@complispace.com.au

W: www.complispace.com.au

This blog is a guide to keep readers updated with the latest information. It is not intended as legal advice or as advice that should be relied on by readers. The information contained in this blog may have been updated since its posting, or it may not apply in all circumstances. If you require specific or legal advice, please contact us on (02) 9299 6105 and we will be happy to assist.

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