Bullying policies and responding to complaints: is your house in order?

Two recent legal decisions have emphasised the importance of employers having an adequate workplace bullying policy or procedure and that a failure to have these in place (or having an inadequate policy or procedure), can have serious consequences.

WHS prosecution for inadequate bullying policies or procedures

On 1 October 2021, the Melbourne Magistrates Court convicted Wyndham Clinic, a private hospital in Werribee, and fined it $60,000 (as well as ordering it to pay $19,630 in costs), after it pleaded guilty to breaching its duty under Victoria’s Occupational Health and Safety Act 2004 to provide and maintain, so far as was reasonably practicable, systems of work that were safe and without risks to health because it failed to have workplace policies or procedures addressing bullying.

The conviction relates to Wyndham Clinic’s CEO, Peter Bailey, who bullied a worker between the period of September 2014 until her resignation in March 2016. The court heard that the bullying and Wyndham Clinic’s failure to address it, left the worker “feeling hurt, humiliated, fearful and worthless”. A WorkSafe Victoria investigation found that Wyndham Clinic did not have policies or procedures which addressed bullying, nor did it have a system in place to report bullying behaviour.

Shu Chen [2021] FWC 5347

Shu Chen was an employee of Miniso Pty Ltd (Miniso) (a company operating a chain of variety stores) and managed the operation of 14 stores. The employee applied to the Fair Work Commission (FWC) for an “order to stop bullying” directed against his Manager, and a Senior HR Officer.

Prior to making the application, the employee had reacted “very poorly” to Miniso’s announcement that it would restructure the responsibility of the operation of the 14 stores between the employee and another manager (the Restructure). Upon news of the Restructure, the employee sent a suite of demands by email to the Manager and the Senior HR Officer, which Commissioner Wilson described as “an over-reaction” and “unreasonable behaviour”.

In a similarly hostile manner, the Manager then issued a bluntly worded “Letter of Concern” to the employee when he was absent from a meeting about the Restructure (due to taking personal leave to seek medical treatment for stress). The employee sought to explain his absence in a letter, which was met with another blunt letter requiring the employee to “cease and desist your emails” and attend a meeting to “discuss your performance and the business direction”.

Commissioner Wilson concluded that the Letter of Concern and subsequent email “may” have amounted to bullying conduct. However, Commissioner Wilson said that there was insufficient evidence about the circumstances surrounding the letters to conclude whether it was “reasonable management action carried out in a reasonable manner”.

The employee’s communications had made allegations of bullying and Commissioner Wilson went on to consider Miniso’s response to those allegations and remarked that Miniso’s bullying policy was “observably outdated”. The identified deficiencies in the policy were that the policy:

• did not include a definition of bullying;
• gave no advice about the sort of behaviours which might be bullying;
• failed to set out a clear framework for the receiving and handling of complaints;
• gave no indication of a time frame in which matters provided; and
• failed to say anything about how the rights of complainants and respondents would be respected.

While Commissioner Wilson was satisfied that there was “poor behaviour at Miniso in both directions”, in light of insufficient evidence to determine whether the employee was bullied at work in respect of the letters, Commissioner Wilson was not prepared to make an order to stop bullying.

Instead, Commissioner Wilson recommended that Miniso, among other things, “Revise its bullying policy so that it provides a clear process for making complaints about workplace harassment or bullying; the means by which it is investigated at arms-length to both the complainant and the person complained about; and the timeframes in which complaints are investigated and concluded.”

In the meantime, the inadequacies in Miniso’s bullying policy identified by Commissioner Wilson provide a helpful guide on the kinds of matters that should be included in such a policy.

Implications for employers

These recent decisions demonstrate the importance of employer’s having an adequate bullying policy. An inadequate bullying policy, or having no bullying policy at all, may:

• expose a company to significant potential civil and criminal liability for failing to ensure the safety of the workplace;
• impede the ability of employers to effectively manage allegations of bullying; and
• jeopardise the successful defence of employment related proceedings commenced by employees.

In order to comply with their obligations, employers should:

• have a code of conduct in place that clearly establishes the expectations of employee behaviour;
• have policies and procedures to prevent workplace bullying, as well as suitable mechanisms for reporting and responding to workplace bullying;
• ensure that all employees (existing and new) have access to information about workplace bullying and are trained on relevant policies or procedures; and
• ensure that the development, implementation and review of relevant polices are done in consultation with employees and health and safety representatives.

For further information on any of the issues raised in this alert, including assistance we can offer in assisting to ensure company officers understand their obligations, please contact our Employment Relations and Safety team below.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.