The FWC has praised an organisation's handling of unfounded bullying allegations but has recommended that employers engage independent third parties to conduct investigations when employees "vigorously assert" that internal reviews will be compromised.
Deputy President Peter Sams on Friday not only rejected the Metro Assist tenant advocate's s789FC application for an order to stop her manager from bullying, but said her actions justified the employer responding with "some form of disciplinary action".
The advocate claimed that when she felt overworked and overwhelmed and refused to accept extra cases in 2013, her manager began behaving unreasonably towards her, such as by repeatedly criticising, humiliating and belittling her and being aggressive and mistrustful.
When she lodged a grievance with Metro Assist in 2014, the chief executive investigated her complaints and arranged external mediation that resulted in an agreement between the advocate and her manager.
Following a further complaint, a second internal investigation by the chief executive and Metro Assist's HR department found the manager acted reasonably, but the organisation nevertheless arranged for management and leadership skills training and external peer supervision and vowed to monitor the situation.
When she provided medical advice, Metro Assist also granted the advocate's request for a reduction in hours and an interim change in reporting arrangements, and offered to pay for three sessions with an independent psychologist.
The advocate argued in the FWC that her employer's investigations resulted in an unfair result because they were not "proper or transparent" and she sought orders requiring it to develop new policies and procedures for workloads, dealing with grievances and investigations.
But Deputy President Sams said he was satisfied the chief executive's internal investigations were "sound, appropriate and responsive" and provided the advocate with "every opportunity" to present her version of events, while it was the advocate who was "behaving unreasonably".
He found that "no matter what the result of any investigation of her complaints, particularly those conducted by the employer" the advocate was "not prepared to accept any outcome, unless it unequivocally vindicated her complaints against [her manager] and resulted in disciplinary action".
Bullying jurisdiction not designed to deliver "revenge or retaliation"
The advocate's original anti-bullying application also sought orders for her manager to be "disciplined and demoted", which the Deputy President said was "never going to be an outcome" as the intent of the jurisdiction is to "correct behaviour, not to serve as a vehicle for revenge or retaliation".
The advocate's submission questioned Metro Assist's failure to discipline or dismiss the advocate herself if she was at fault, but the Deputy President said she "should be thankful she was not disciplined for her constant refusal to comply with reasonable directions of her manager".
"I consider that in the context of threats of legal action, actual action taken by [the advocate] and her unwillingness to accept any rapprochement with [her manager], it was perfectly understandable [her manager] was 'treading on eggshells' every time a new complaint was made that was unresolved to [her] satisfaction."
Warning the advocate to be "very careful" about her conduct in the future, he said Metro Assist had "ample evidence to have justified some form of disciplinary action being taken against [the advocate]".
The deputy president found no evidence of bullying and noted her allegations appeared to "have their origin" in the advocate's failure to win a promotion she applied for in 2013, while her manager succeeded.
Meanwhile, the manager had treated the advocate courteously, managed her team in a "fair and equitable manner" and her conducted constituted reasonable management action carried out in a reasonable manner, Deputy President Sams found.
The deputy president also noted the advocate's claim she was being overworked was "somewhat difficult" given she refused extra work, and said her suggestion that two extra files in two and a half years constituted overwhelming her with work was an "absurd gross exaggeration".
However, Deputy President Sams said still he believed a workable, courteous and professional relationship between the manager and advocate was "not beyond salvaging" and he strongly recommended they "both work very hard to achieve such a result".
He also recommended that "in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation".
But he added that in this case "it would have unlikely made any difference to the outcome".
Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 (19 August 2016)