No anti-bullying order after employer reforms behaviour

The FWC has declined to make an order against a radiology company found to have bullied an employee, saying its recent "careful attention to procedural fairness" made it unlikely its conduct would continue.

Commissioner John Lewin found the behaviour of two Capital Radiology managers who arrived unannounced to berate a new radiographer before initiating disciplinary proceedings constituted bullying under s789FD of the Fair Work Act 2009.

Their "severe criticism" was based on complaints by a practice manager of the GP clinic where the business was co-located and involved matters that were "in some, if not most cases" a consequence of him being new to the profession, the commissioner said.

Rejecting the employer's contention that the actions constituted "reasonable management carried out in a reasonable manner", the Commission earlier dismissed a jurisdictional objection saying that conflating performance management and disciplinary action within its management policy was part of the problem (see Related Article).

"In my view, it could be somewhat confusing to [the radiographer] that while the [employer's] intention was the performance management. . . the action was in fact disciplinary in nature, which [he] found threatening," Commissioner Lewin said.

He said it did not require the "wisdom of the ancients" to appreciate the effect of the general manager and HR manager’s visit to the employee who had only recently started work and was still on a probationary period.

"I consider that a simple and reasonable course of action would have been to advise [the radiographer] of the proposed meeting and, even if only in the most summary terms, the purpose of the meeting, either by telephone or email, and attempt to explain the expectations of [the employee's performance of his duties in the particular circumstances obtaining at the Clinic, in a supportive way," he said.

Despite the bullying behaviour and the parties' inability to agree on draft terms and conditions issued by the FWC, the Commissioner said he was unable to make an order against the employer because he was not satisfied there was an ongoing risk, as required under s789FC of the Act.

He said that once Capital Radiology's jurisdictional objection failed, the employer’s actions could "not be faulted" despite the "highly adversarial" and volatile situation, which included inflammatory and derogatory emails sent by the radiographer.

The employer had withdrawn its disciplinary action, the two managers no longer directly interacted with the radiographer, the company's highest level of management was now dealing with the situation "with restraint and patience", it had not responded inappropriately to the radiographer's inflammatory emails and it stood him down with pay while his work was performed by another "at an additional expense" while its management procedures were followed.

"On balance, in light of the evident intentions of the [company and its managers] to follow fair procedure, I am unable to be satisfied that as long as the procedure is followed, with the same intention and caution, there is a risk that bullying of [the radiographer] will continue," the Commissioner said.

James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2015] FWC 3538 (22 May 2015"